Citation Nr: 20006367 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 15-40 352 DATE: January 28, 2020 ORDER Entitlement to an initial rating of 10 percent, but no higher, for traumatic brain injury (TBI), prior to June 21, 2016, is granted. Entitlement to an increased rating in excess of 10 percent for TBI, from June 21, 2016, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed as moot. Entitlement to special monthly compensation (SMC) at the housebound rate, prior to August 3, 2016, is denied. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s TBI was manifested primarily by cognitive impairment that included decreased academic and communication ability, mild memory loss, and frustration. 2. As the Veteran has been granted a 100 percent rating for grand mal seizures, the issue of entitlement to TDIU is moot. 3. Prior to August 3, 2016, the Veteran’s only other service-connected disability other than the disability rated as total, was TBI rated at 10 percent disabling. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent, but no higher, for TBI, prior to June 21, 2016, are met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8045 (2018). 2. The criteria for an increased rating in excess of 10 percent for TBI, from June 21, 2016, are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8045 (2018). 3. The claim of entitlement to TDIU is moot. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2018). 4. The criteria for SMC based on one service-connected disability rated as total and additional service-connected disability independently ratable at 60 percent or more (housebound rate) have not been met prior to August 3, 2016. 38 U.S.C. §§ 1114(s), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2007 to August 2007 and from August 2008 to October 2008. The Veteran appeals an April 2015 Rating Decision by the Agency of Original Jurisdiction (AOJ). In April 2019, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A Board hearing was held in August 2018. A transcript is of record. Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Service connection for TBI at a noncompensable rating was granted to the Veteran, effective from November 24, 2014, in the April 2015 Rating Decision. A 10 percent increased disability rating was granted in the September 2016 Rating Decision, effective from June 21, 2016. The criteria pertaining to residuals of TBI under DC 8045 provide that residuals of TBI involve three main areas of dysfunction: (1) cognitive; (2) emotional/behavioral; and (3) physical; and that such disability will be rated based upon the three main areas. The criteria also provide that when there is a separate disability residual with a distinct diagnosis that may be evaluated under another DC, a separate rating may be assigned even if the symptoms are subjective. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of 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 DC, such as migraine headaches 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. Emotional/behavioral dysfunction is evaluated 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.” Physical/neurological dysfunction is evaluated 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 evaluation of cognitive impairment contains 10 facets of TBI related to cognitive impairment and subjective symptoms. Each facet is to be assigned a number ranging from 0 to 3 and a level 5, which is total impairment. Zero (0) represents a normal finding. When there is no ‘total’ facet finding, the rater is to assign the overall percentage evaluation based on the level of the highest facet. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. DC 8045 makes clear that “[i]f 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.” Pursuant to DC 8045, facets of cognitive impairment and other residuals of TBI not otherwise classified resulting in impairment of memory, attention, concentration, executive functions are evaluated based on levels of severity. 0 equals no complaints of impairment of memory, attention, concentration, or executive functions; 1 equals 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 equals objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; 3 equals objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. A total evaluation equals objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Additionally, impairments in communication are rated as follows: 0 equals able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. 1 equals comprehension or expression, or both, of either spoken language or written language only occasionally impaired; can communicate complex ideas. 2 equals an 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 equals an 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. A total impairment equals a 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. The Veteran’s TBI is manifested by depression, anxiety, seizures/epilepsy, and headaches. The Board notes the Veteran has been service connected for grand mal seizures and an adjustment disorder with mixed anxiety and depression, both as secondary to TBI. Therefore, the below analysis will consider the symptoms not already compensated by the Veteran’s other service-connected disabilities. 1. Prior to June 21, 2016 The December 2014 Separation Health Assessment noted the Veteran to have complaints of memory, normal judgment, social interactions routinely appropriate, normal orientation, normal motor activity, normal visual spatial orientation, no subjective symptoms, no neurobehavioral effects, normal communication, and normal consciousness. Speech Pathologist G.C. wrote in the February 2016 letter that the Veteran had poor recall of immediate events, loss of line of conversation, poor ability to accomplish procedural tasks, episodes of absence, and declining reading comprehension and calculation. See April 2015 Notice of Disagreements (NOD). The Board notes the AOJ awarded a 10 percent rating and its effective date based on the June 2016 VA examination. However, it appears that the Veteran possessed such symptoms warranting a 10 percent rating well before the date of his June 2016 VA examination. To the extent that the Veteran had cognitive impairment that was associated with his TBI, the symptoms and impairment noted in the medical evidence are consistent with a rating of 1, which is consistent with a 10 percent initial disability rating, and no higher, under DC 8045, prior to June 21, 2016. Under the circumstances, an initial disability rating higher than 10 percent for the Veteran’s TBI is not warranted based on demonstrated cognitive impairment and DC 8045 prior to June 21, 2016. Although the Veteran had some issues concerning his conversation ability, he was still able to generally communicate and comprehend speech. Importantly, the Veteran had normal judgment and interactions and medical providers did not find him disoriented. The Veteran also had minor memory issues that entailed only poor recall of events, but not the inability to recall events. Overall, the medical evidence demonstrates minor episodes of decrease in function, and not the inability to converse or complete tasks using cognition. Other than the evidence noted above, medical examinations did not find additional impairments, symptoms, or functional loss. As such, the complaints of memory, conversation issues, and decrease in cognitive ability only reflect a rating of 1. 2. From June 21, 2016 The June 2016 VA examination report noted the Veteran to have mild memory loss, mild impaired judgment, social interaction routinely appropriate, occasional disorientation, normal motor activity, and normal visual spatial orientation. The August 2019 VA examination report noted the Veteran to be tired, agitated, and to have no complaints of impairment of memory, attention, concentration, or executive functions, normal judgment, social interactions routinely appropriate, normal orientation, normal motor activity, normal visual spatial orientation, no subjective symptoms, no neurobehavioral effects, normal communication, and normal consciousness. The August 2019 VA examiner also noted the Veteran’s performance was significantly worse than expected, however his performance was inconsistent with noncredible effort. The Veteran testified at a Board hearing that he had short-term memory loss in remembering dates and times, sensitivity to light requiring the wearing of sunglasses, occasional confusion, and social isolation and avoidance. See August 2018 Board Hearing Tr. at 10, 13-14. To the extent that the Veteran had cognitive impairment that was associated with his TBI, the symptoms and impairment noted in the medical evidence are consistent with a rating of 1, which is consistent with a 10 percent initial disability rating, and no higher, under DC 8045, from June 21, 2016. Under the circumstances, an increased disability rating higher than 10 percent for the Veteran’s TBI is not warranted based on demonstrated cognitive impairment and DC 8045 from June 21, 2016. The Veteran was found to have only mild memory loss and mild impaired judgment during the June 2016 VA examination. Also, from June 21, 2016, the evidence does not demonstrate further complains with conversation and speech. Importantly, the August 2019 VA examiner did not find the Veteran to have complaints of memory impairment and found normal judgment and social interaction. The Veteran even stated his memory issues include only short-term memory loss in remembering dates and times, and not severe memory issues as remembering names and events over a longer period of time. Furthermore, the Veteran stated his confusion was occasional. Therefore, the Veteran’s own statements suggest his symptoms are only of a mild degree and intermittent. Given the Veteran’s statements, and the August 2019 VA examiner’s statement of inconsistent performance by the Veteran, the Veteran’s decrease in cognitive ability only reflect a rating of 1, which equates to no higher than a 10 percent rating. 3. Separate Ratings The Board acknowledges the Veteran’s medical evidence mentions tinnitus and headaches. These physical symptoms may warrant a separate rating granted they are related to the Veteran’s TBI and manifested at compensable levels. DC 8045 provides that those physical manifestations be rated separately under appropriate rating codes and then combined under 38 C.F.R. § 4.25. Regarding tinnitus, recent medical records noted a medical history of tinnitus. See, e.g., December 2014 VA examination report and and May 2019 VA treatment record. However, the evidence does not demonstrate that the Veteran’s tinnitus is related to his TBI. The medical evidence seems to inconsistently note tinnitus as an active problem and does not relate its etiology to TBI. The Veteran’s TBI DBQs do not note tinnitus as a symptom of TBI. As such, the Veteran is not entitled to a separate rating for tinnitus. Regarding headaches, the Veteran’s medical records show recent headache treatment. See May 2015 Private treatment record and September 2015 VA treatment record. The Veteran’s TBI DBQs note headache symptoms and medical evidence suggests that his headaches are related to his seizures associated with TBI. See June 2016 and August 2019 VA examination reports and December 2014 Report of Medical History. Disabilities due to headaches are rated generally in accordance with the criteria under 38 C.F.R. § 4.124a, DC 8100. Under those criteria, a non-compensable disability rating is assigned for headaches that are marked by less frequent attacks. A 10 percent disability rating is assigned for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum schedular 50 percent disability rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define the term “prostrating.” 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.” Essentially the same definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), which defines “prostration” as “extreme exhaustion or powerlessness.” Although the Veteran may have TBI residuals of headaches, he does not suffer from headaches with characteristics of prostrating attacks to warrant a compensable separate rating. As noted above, the medical evidence notes treatment for headaches, but does not note prostrating attacks. At most, the December 2014 Report of Medical History noted the Veteran’s headaches lasted up to 48 hours. However, the June 2016 VA examination report noted only symptoms of mild headaches. The August 2019 VA examination report specially noted the Veteran’s headaches did not require him to take a nap or require sleep. As such, the Veteran is not entitled to a separate compensable rating for headaches. TDIU The Veteran has stated that he cannot work due to his condition. See April 2015 and November 2016 NOD. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; or (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2018). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). A grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. Here, the Veteran is in receipt of a 100 percent rating for grand mal seizures since he filed his initial claim. The Veteran is also in receipt of SMC from August 3, 2016, being the effective date of his 50 percent rating for an adjustment disorder. As detailed below, the Veteran is not entitled to SMC prior to August 3, 2016. Prior to August 3, 2016, the Veteran’s only other service-connected disability was TBI at now 10 percent disabling. However, the Veteran does not detail or provide argument on how his service-connected TBI alone rendered him unemployable and the record does not demonstrate that such is productive of unemployablity. Furthermore, the June 2016 VA examination regarding TBI marked that the Veteran’s residual conditions attributed to TBI do not impact his ability to work. As a result, the issue of entitlement to TDIU is moot and must be dismissed. SMC In the May 2019 Rating Decision, the AOJ awarded SMC at the housebound rate effective from August 3, 2016. The effective date is based on the effective date of the Veteran’s service-connected adjustment disorder. Prior to August 3, 2016, the Veteran had a total disability of grand mal seizures effective November 24, 2014 and, pursuant to this decision, a 10 percent rating for TBI effective November 24, 2014. The Board will discuss entitlement to SMC prior to August 3, 2016 as the period on appeal extends back to November 24, 2014. 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). (Continued on the next page)   As stated above, the Veteran was not in receipt of a separate disability ratable at 60 percent or more prior to August 3, 2016. Furthermore, the Veteran has not provided any arguments or statements illustrating that he is permanently housebound. As such, he is not entitled to SMC at the housebound rate prior to August 3, 2016. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel 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.