Citation Nr: 20072833 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 13-31 818 DATE: November 12, 2020 ORDER Service connection for residuals of a traumatic brain injury (TBI) with short term memory loss is denied. An increased initial rating of 70 percent, but no higher, from May 13, 2011 to January 30, 2013 is granted. An increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) after January 1, 2015 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s has residuals of a traumatic brain injury (TBI) with short term memory loss. 2. The Veteran had a mild TBI, which resolved prior to separation from active duty service with no residuals. 3. The evidence is in relative equipoise that the Veteran’s service-connected PTSD manifested with occupational and social impairment in most areas from May 13, 2011 to January 30, 2013. 4. The evidence is in relative equipoise that the Veteran’s service-connected PTSD manifested with occupational and social impairment in most areas, such as family relations and mood, due to such symptoms as suicidal ideation, near continuous depression, affecting the ability to function independently, appropriately and effectively, and inability to establish and maintain effective relationships after January 1, 2015. 5. The preponderance of the evidence is against a finding that the Veteran’s PTSD manifested with total occupational and social impairment, due to 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; or memory loss for names of close relatives or own name during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a TBI with short term memory loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an increased initial rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for a disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to July 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and November 2012 ratings decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge via video conference with the Veteran sitting at the RO. A copy of the transcript of the hearing is in the claims file. In February 2019, these matters were remanded for further development consistent with a July 2018 Court of Appeals for Veterans Claims (the Court) joint motion for partial remand (JMPR) that remanded these matters to the Board after partially vacating an October 2017 Board decision. The Board find substantial compliance with the remand directives, and therefore these matters are ready for adjudication. Service Connection Service connection for residuals of a TBI with short term memory loss is denied. The Veteran claims that she suffered a TBI that caused residuals of migraines, vision impairment, tremors, and short-term memory loss. See VA 21-4138 Statement in Support of Claim received 03/01/2012. In relevant part, the Veteran claimed direct service connection for memory loss due to in service TBI and service connection based on aggravation for her migraine headaches and hand tremors, which she claimed existed before service. After the Board’s February 2019 remand, the RO granted service connected for migraine headaches and left-hand and right-hand essential tremors. See Rating Decision-Narrative received 1/22/2020. The Board remanded these two issues in October 2017. Additionally, an August 2020 rating decision granted service connection for pseudo-seizures as secondary to service-connected PTSD and assigned a noncompensable rating, effective May 13, 2011. The Veteran has not initiated review of any aspect of either of these rating decisions. As such, the Board will not discuss them further. Accordingly, the only remaining issue is service connection for TBI with memory loss. At the outset, the Board acknowledges that the aforementioned favorable decisions are binding with regard to the in-service injury, here being hit with a 2x4 in the back of the head during service. That said, the Board finds that service connection for TBI with memory loss is not warranted for the reasons outlined below. Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38C.F.R. §3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran was first provided a VA compensation and pension examination in July 2012. The examiner reviewed the Veteran’s claims file and noted the in-service treatment of a head injury with a 2x4 where the Veteran was diagnosed with a cranial hematoma. The hematoma was treated for two days with no treatment afterwards. At separation there was no notation of any residuals from the hematoma. In the report of medical history, the Veteran also confirmed she had no head injury, no loss of memory, and noted no loss of consciousness. See VA examination received 7/10/2012 at page 4; see also STR received 12/23/1996 at pages 18 and 43. The examiner noted a prior history of concussions, two of which were post service: one in a fire in 2007 and the other in a truck accident in 2009. The examiner noted that the Veteran had subjective complaints of short-term memory loss. In the Montreal cognitive assessment (MOCA), the Veteran scored 28/30, which is higher than normal. The examiner ultimately provided a negative nexus for TBI with short term memory loss finding that it was not caused by or incurred during the Veteran’s active duty service because she separated from service without subjectively noting any issues of memory loss or loss of consciousness and scored higher than the normal in the Montreal cognitive assessment. A review of the Veteran’s medical records shows that her short-term memory loss was first noted in treatment records in November 2003, wherein it was linked causally to electroshock treatment (ECT) that the Veteran undergone for depression. See Medical Treatment Record received 8/28/2014 at page 54. Relatedly, a January 2012 VA compensation and pension examination for PTSD linked her mild memory loss to ECT and listed it as a symptom of her service-connected PTSD. See VA Examination received 12/21/2012 at pages 10 and 17. In March 2015, the Veteran submitted a positive nexus statement for her seizure disorder from her VA physician, A.E.L., wherein the physician linked her memory lapses to her seizure disorder, which she linked to TBI. See Medical Treatment Record received 3/06/2015 at page 1; see also Third Party Correspondence received 4/03/2015. The Veteran underwent another examination in October 2015. The examiner diagnosed the Veteran with TBI with an onset date in 1993, or during her active duty service. See C&P Exam received 10/28/2015 at page 1. The examiner noted the Veteran’s complaint of memory loss but stated that it seemed related to her mental health issues. Id. at page 5. The examiner found that the Veteran had no residuals that were related to TBI. A neuro physical test was performed which showed slowed processing time but normal memory and concentration. The examiner also noted a normal CT of the head in 2007. Id. at 8. The examiner opined that the Veteran had a mild TBI in 1993 but that her current symptoms are related to her service connected acquired psychiatric condition and not to the mild TBI in 1993. The examiner also noted two additional TBIs more recently but stated that these were unlikely related to her current symptoms. After the 2019 Board remand, the Veteran underwent a VA examination in January 2020. The January 2020 found no diagnosis of a TBI. The January 2020 examiner, a psychiatrist, noted the Veteran’s in-service history with regard to her claim for TBI: (1) the hematoma from being hit with a 2x4 and (2) being abuse and her boyfriend pulling her by the hair and abusing her. The January 2020 examiner noted that the Veteran was never hospitalized although she reported some dizziness and later having to need glasses. The January 2020 examiner found no complaints of impairment of memory, attention, concentration or executive functions. The examiner identified no residuals to include no pertinent physical findings including scars. See C&P Exam received 1/30/2020 at page 7-8. The Veteran was also given a MOCA test wherein she scored a 30 out of 30. Id. The January 2020 examiner opined that there was no TBI and noted the 30 out of 30 MOCA score. In an addendum opinion, a separate examiner also found no functional impact of residuals for the Veteran’s claimed TBI with short term memory loss. The January 2020 addendum examiner opined that it was less likely than not that the Veteran sustained any residual conditions attributable to her in-service TBI. In support, the medical records document little effect from the incident of being struck by a 2x4, and they indicate that depressive symptoms erupted organically and separately from any alleged TBI. See C&P Exam received 1/30/2020 at page 4. In the Veteran’s 2016 hearing testimony, she endorsed having memory issues that she traced to her in service head injury with the 2x4. See Hearing Transcript received 12/16/2016 at page 7. She further testified that she has a flat spot at the back of her head from where she was hit, ringing in the ears, blurred vision, pain, nausea, and vomiting shortly after the blow to her head. Id. at page 4. Relatedly, the Veteran submitted multiple buddy statements that attest to the occurrence of the injury. The Board finds that the evidence is in relative equipoise that the Veteran’s head injury with the 2x4 manifested as a mild TBI as diagnosed by the October 2015 examiner. This evidence tends to support an in-service event/injury. However, the Board finds that the preponderance of the evidence is against a finding that the Veteran has current residuals of short-term memory loss from the mild TBI. The competent medical evidence, which includes all the compensation and pension examinations, is consistent and abundant that any short-term memory loss is likely related to her already service-connected mental health disorder rather than the mild TBI in 1993. Additionally, the Veteran’s service treatment records tend to support that the mild TBI resolved prior to her separation since she affirmatively endorsed no memory issues at separation and the examiner noted no physical findings, e.g. scars, dent on the back of her head during the examination. See STR received 12/23/1996 at pages 2-4. The Board further finds the Veteran’s medical treatment records persuasive because her treating physicians linked her memory loss to the electroconvulsive therapy (ECT) that was used to treat her depression and not to treat a TBI. The Board notes that although memory loss is of record, the symptom is compensated via the Veteran’s service-connected PTSD with major depressive disorder. Though the Board acknowledges the Veteran’s lay statements that she believes her short-term memory loss is due to her head injury in service. The Board finds that she is not competent to determine the etiology of her short-term memory loss as such a finding requires medical expertise in many areas, such as neurology and to properly interpret diagnostic testing results. Relatedly, although there are positive nexus statements from the Veteran’s treating physicians as to her TBI and the connection to service, of significance is that none of the nexus statements referenced short term memory loss as a residual of her TBI. Additionally, low weight is placed on them due to bare conclusions without supporting explanations, to include the 2015 opinion by Dr. HH. The Board noes the 2015 states that the Veteran experienced TBI in in service and had had intractable partial complex seizures. The Board places low weight on this opinion because it did not reference relevant facts, to include the Veteran’s service separation examination. Additionally, this statement focuses on seizures and, as noted above, service connection is in effect for pseudo-seizures. The Board also finds the Social Security Administration (SSA) records in the claims file that indicated a diagnosis of “intractable complex partial seizure” as noted by the JMR as lacking relevance due to now service-connected pseudo-seizures. Rather, the Board puts more weight into the C&P examinations and the MOCA test wherein the Veteran normal with no cognitive impairment. The examiner performed an in-person examination of the Veteran, to include assessing at the 10 aspects of a TBI, and took a detail medical history showing awareness of relevant facts such as other TBI event and past diagnostic testing. Meanwhile, current neuropsychological testing from January 2020 (MOCA) showed that the Veteran did well by scoring 30 out of 30. Such evidence tends to weigh against current TBI residuals that are not already compensated by other service-connected disabilities. After considering the relevant medical and lay statements of record, the Board finds that the preponderance of the evidence is against service connection for residuals of a TBI with short term memory loss. 38 U.S.C. § 5107(b). Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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 view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58(1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West,12 Vet. App. 119 (1999). Rating Criteria PTSD which produces occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped 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, warrants a rating of 50 percent. 38 C.F.R. § 4.130, DC 9411. A 70-percent evaluation applies when a veteran’s occupational and social impairment reflects deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned when 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; and memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (also known as "the DSM-5"). 38 C.F.R. § 4.130. 1. An increased initial rating of 70 percent, but no higher, from May 13, 2011 to January 30, 2013 is granted. In the February 2019 Board remand, the Board remanded the issue of an initial rating in excess of 50 percent disabling for the Veteran’s service-connected PTSD. After a review of the record, the Board finds that the evidence is at least in equipoise that the Veteran’s PTSD manifests with social and occupational impairment with deficiencies in most areas such as suicidal ideation, near continuous depression affecting ability to function independently, and neglect of personal appearance and hygiene from the date of claim, May 13, 2011, to January 30, 2013. The Veteran was provided an examination in December 2011. The December 2011 VA examiner diagnosed her with PTSD and major depressive disorder (MDD). The examiner found that the Veteran’s PTSD and MDD manifested with occupational and social impairment with occasional decreases in work efficiency, which is equivalent to a 30 percent rating. The December 2011VA examiner reviewed the Veteran’s claim file and described the Veteran’s significant history of pre-service and post service depression. At the time of the examination, the Veteran was employed as a contract worker with Dell and reported getting along with coworkers and her bosses, her only work frustration being that she was not offered a full-time position. See VA Examination received 12/21/2012 at page 9. The December 2011 examiner reported no history of illicit drug use or problematic alcohol abuse. The examiner endorsed symptoms such as depressed mood, suspiciousness, chronic sleep impairment, flattened affect, mild memory loss and suicidal ideation. The VA examiner found that the Veteran’s PTSD and MDD clearly and unmistakably existed prior to service and clearly and unmistakably was aggravated by her in service physical and sexual assault.   A review of the Veteran’s medical records shows that at the time on appeal, the Veteran struggled with activities of daily living (ADLS), since her now ex-husband had to remind her to shower and feed herself. See SSA-L1103 at page 7. In the Veteran’s functional report in her SSA file, she stated endorsed suicidal ideation and that she was in constant fear of harming herself. Id. at page 22. At the December 2016 hearing, the Veteran testified that due to her PTSD she doesn’t go outside and she’s in constant fear for her life. See Hearing Transcript received 12/15/2016 at page 21. Accordingly, the Board finds that the evidence of record is in relative equipoise that the Veteran’s PTSD and MDD manifested with deficiencies in most areas such as family relationships and mood with symptoms such as suicidal ideation, near constant depression affecting the Veteran’s ability to function independently and neglect of personal appearance and hygiene. Therefore, the Board finds that an initial rating of 70 percent is warranted from the date of claim. That said, the Board finds that a higher rating of 100 percent disabling is not warranted since the evidence of record showed the Veteran held a job that she did successfully with no reprimands and good relations with coworkers as evidenced in her December 2011 VA examination. Further, though the Veteran endorsed memory loss, her mild memory loss, did not consist of forgetting her own name or the name of close relatives. See VA examination received 12/21/2012 at page 17. Additionally, the Veteran endorsed that she went out with her husband and children going shopping and eating, and went her children’s sporting events. See SSA-L1103 received 12/21/2014 at page 20. In sum, the evidence of record to include the aforementioned December 2011 VA examination and the record, does not support that the Veteran was totally occupationally and socially impaired due to her PTSD and MDD, therefore a higher initial rating of 100 percent from May 13, 2011 to January 30, 2013 is not warranted.   2. An increased rating in excess of 70 percent after January 1, 2015 is denied. In the February 2019 Board remand, this issue was remanded consistent with the Court’s JMPR that remanded this issue because it found that the Board gave inadequate reasons and basis for the denial of a rating in excess of 70 percent disabling for the Veteran’s service-connected PTSD. On remand, the Veteran underwent VA compensation and pension examination in January 2020. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity, which is the equivalent of a 50 percent rating. This would mark an improvement in the Veteran’s condition. The examiner noted that the Veteran was in a stable relationship having been married since September 2018. See C&P Exam received 1/30/2020 at page 3. She described her relationship with her adult children as “difficult” and her relationship with her extended family as “toxic”. The Veteran denied having an adequate support system and endorsed no social and leisure activities due to diminished interest. Id. Of note, although the Veteran has not worked since 2012, when she did work, she was never reprimanded or fired from any position. The Veteran has had no legal issues since separation from service and there is no evidence of excessive alcohol abuse or illicit drug use. Id. at pages 3-4. Additionally, since the February 2019 Board remand, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been established from December 1, 2012 that reflects her inability to obtain or secure substantially gainful employment and compensates her for this loss of income. The 2020 examiner endorsed the following symptoms related to the Veteran’s diagnosis: depressed mood, anxiety, chronic sleep impairment, difficulty establishing work and social relationships, and difficulty adapting to stressful situations. The Veteran was well groomed and on time for the appointment, and her eye contact and speech were normal. The examiner found no evidence of suicidal ideation, planning or intent. In the attached medical opinion, the examiner stated that the Veteran exhibited moderate limitation in a work setting since she found her able to complete a normal workday/week without interruptions from psychological based symptoms. A review of the Veteran’s treatment records shows that in early 2015, the Veteran was an in-patient at a treatment facility for dialectical behavioral therapy (DBT). At that time, she was diagnosed with PTSD and borderline personality disorder (BPD). She successfully completed the program and upon discharge found out her then husband was divorcing her. See Capri received 9/20/2019 at page 154. The program was not mandatory but elective. and the Veteran was never hospitalized, and had no psychiatric emergency room visits since December 2014, and reported no suicidal ideation since June 23, 2014, the time of her last attempt. Id. at page 156. With the program being elective and conducted as an outpatient, a temporary total rating under 38 C.F.R. § 4.29 is not warranted as there was not required hospital treatment. Overall, the Veteran endorsed no suicidal ideation in her treatment notes except for a single treatment note, in January 2016, mentioned a suicidal thought after the Veteran had a difficult visit with her children. Id. at page 120. Around the time of her divorce in 2015, the Veteran endorsed severe psychiatric symptoms, including depression and anxiety. Her treatment provider described her as having significant distress with an intense fear of being alone and unloved. Id. at page 123. Around January 2016, the Veteran’s treatment records were largely positive with her reporting that she was doing well and in a supportive relationship with her future husband. Id. at page 59. She described her level of support as “good” and stated that she has three close friends, including a friend that she visits regularly. Id. at page 121. The Veteran endorsed that she was able to complete ADLS but sometimes neglects these activities and described her mood as depressed more than half the time. Her treatment records reflect that the Veteran was normally on time and dressed appropriate for her therapy sessions. The last treatment note was in September 2016, wherein the Veteran stated she was doing well. Id. at page 20. In August 2019, the Veteran was discharged from the mental health clinic and moved from active patient status because she had not contacted them in over 24 months. Id. at page 3.   Given the aforementioned, the Board finds that the evidence is in relative equipoise that the Veteran has social and occupational functioning with deficiencies in most areas since January 1, 2015. The Board finds that the January 2020 VA examination is adequate since the examiner performed an in-person examination with a thorough review of the Veteran’s file, listing key dates and changes in the Veteran’s health record. Although, the examiner’s finding that the Veteran had occupational and social functioning with reduced reliability is supported by the record, the Board finds that a review of her treatment notes show that the Veteran had a suicidal thought, was depressed at least half the time, and though her dress was appropriate, she endorsed inconsistent activities of daily living (ADLS). Accordingly, the Board finds that the evidence more nearly approximates that the Veteran’s PTSD manifested with deficiencies in most areas such as family relations and mood, due to such symptoms as suicidal ideation, near continuous depression, affecting the ability to function independently, appropriately and effectively, and inability to establish and maintain effective relationships. That said, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s PTSD manifested with total occupational and social impairment since the record supports an overall improvement in the Veteran’s mental health during this period, to include the lack of regular mental health treatment. The 2020 VA examination report shows that the Veteran is in a positive relationship with her spouse of two years wherein she endorsed feeling supported and loved. This tends to weigh against total social impairment. The record does show difficult relationship with her three children, but this impairment is contemplated and compensated in the 70 percent rating as an inability to establish and maintain effective relationships. Additionally, in her treatment records, there is no instance of physical violence against others. Further the record shows that the Veteran has consistently appeared appropriate in treatment sessions and maintained her ADLS. And although the Veteran has endorsed problems with memory loss, such loss has not manifested with the loss of names of close family members or her own name during the period on appeal. Her speech, thought content, thought process, insight, and judgment appeared within normal limits, to include as noted at the 2020 examination.   After review record, the Board finds that the preponderance of the competent evidence, which includes the Veteran’s treatment records and the January 2020 VA examination, is against a finding that the Veteran’s PTSD manifests with total occupational and social impairment since January 2015. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.