Citation Nr: 20021477 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-24 182 DATE: March 25, 2020 ORDER Entitlement to a compensable initial evaluation for traumatic brain injury (TBI) is denied. FINDING OF FACT Throughout the rating period on appeal, the most probative evidence of record does not reflect the Veteran’s TBI was manifested by any facet equating to higher than a level “0” under the Table of Facets of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified; other reported disabilities are not manifestations of his TBI or are already separately service-connected. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for a compensable initial evaluation for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1979 to December 1979 and from August 1981 to January 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA). The issue of entitlement to a compensable initial rating for TBI was previously before the Board in July 2018, when it was remanded for further development. It now returns for appellate review. In a December 2013 notice of disagreement, the Veteran’s representative requested a hearing before a Decision Review Officer; however, in March 2015 correspondence she withdrew this request. Similarly, in a July 2015 substantive appeal, the Veteran’s representative requested a Board hearing; however, in a September 2016 and February 2017 correspondence, she withdrew this request. In July 2019 correspondence, the Veteran’s representative indicated she had attached 19 pages of additional evidence; however, this additional evidence was not of record. Thus, in January 2020 correspondence, VA notified the Veteran’s representative that the 19 page of additional evidence had not been received and she should submit the evidence again if possible. Subsequently, in January 2020, the Veteran’s representative submitted the additional evidence but did not waive review of such by the Agency of Original Jurisdiction (AOJ). Additionally, in February 2020, the Veteran’s representative submitted a private medical record and waived review of such by the AOJ. The evidence received in January 2020 and February 2020 was subsequent to the most recent, April 2019 Supplemental Statement of the Case issued for the appeal herein. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, the substantive appeal for this claim was filed after February 2, 2013, specifically in July 2015, and the record reflects that the entirety additional evidence was submitted by the Veteran’s representative. Further, although the evidence submitted by the Veteran’s representative in January 2020 included a January 2019 VA medical letter, which generally indicated that the Veteran was enrolled in mental health services and had been diagnosed with PTSD, such is cumulative of prior evidence. As such, a remand for the additional evidence to be considered by the AOJ is not warranted. 1. Entitlement to a compensable initial evaluation for TBI Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA must consider whether to “stage” the rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. Consideration of the appropriateness of a staged rating is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Veteran contends he is entitled to a compensable rating for his service-connected TBI. Specifically, in February 2017, his representative argued, in part, that the Veteran had additional residuals that were not service-connected under separate diagnostic codes. She also argued the 2013 VA examiner found the Veteran had “total” impairment with his memory and listed TBI residuals consisting of hearing loss, tinnitus, gait impairment, dizziness, headaches, Meniere’s disease, and a mental condition, and that the examiner documented values of 1 and 2 for the facets of neurobehavioral, visual/spatial, subjective, judgement and social interaction. Service connection has been established for TBI effective from October 15, 2012. As such, the rating period for consideration on appeal is from October 15, 2012. Throughout the appeal period, the Veteran’s TBI has been rated as zero percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 8045. Residuals of TBI are rated under Diagnostic Code 8045, which states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. 38 C.F.R. § 4.124a. 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 that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the same table, with the exception of 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. Id. Emotional/behavioral dysfunction should be evaluated under § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, such symptoms should also be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Physical (including neurological) dysfunction should 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. Other residuals reported on an examination 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 then combined under § 4.25. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. The 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.” A 100 percent evaluation should be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation should be assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Id. The 10 cognitive impairment facets are: consciousness, communication, neurobehavioral effects, subjective symptoms, visual spatial orientation, motor activity, orientation, social interaction, judgment, and one facet encompassing memory, attention, concentration, and executive function. There may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic disorder or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation is to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned 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, a separate evaluation is assigned for each condition. 38 C.F.R. § 4.124 (a), Note 1. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 38 C.F.R. § 4.124 (a), Note 2. Instrumental activities of daily living refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from activities of daily living, which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. 38 C.F.R. § 4.124 (a), Note 3. The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of a 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. 38 C.F.R. § 4.124 (a), Note 4. Although not proximate to the appeal period, an August 2009 VA examiner noted, as to the Veteran’s neurologic system, he demonstrated excellent hand grasp, muscle mass and strength upper and lower extremities were excellent, he did not demonstrate any motor or sensory deficit upper or lower extremities and his speech during the course of the examination was crystal clear and he responded readily to questioning. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Although also not proximate to the appeal period, a December 2009 VA examiner documented the Veteran denied difficulty completing activities of daily living as a result of his symptoms of TBI or mental disorder and based on his self-report, the facets of neurobehavioral effects, memory, attention, and concentration, orientation, and visual spatial orientation, were scored as 1, and judgement and social interactions were scored as 0. However, the December 2009 VA examiner also opined that the Veteran appeared to have endorsed symptoms that did not appear to be consistent with the intensity of his accident, that he appeared to be exaggerating, and that he endorsed a high frequency of symptoms from multiple diagnostic categories. The December 2009 VA examiner opined that, while the Veteran may suffer from symptoms of mental disorder, due to his performance during the evaluation and the neuropsychological evaluation, no diagnosis other than malingering could be made. Similarly, a February 2010 VA examiner also endorsed a diagnosis of malingering and described, in part, that the assessment was discontinued following administration of tests of motivation indicating that the Veteran not only failed to put forth his best effort, but was likely exaggerating or malingering his symptoms. The February 2010 VA examiner described, in detail, that the Veteran’s responses were unusual and highly atypical, and not consistent with the type of difficulties observed in patients with legitimate brain injury. The February 2010 VA examiner explained the Veteran’s profile was consistent with a “fake bad” profile and was strongly suggestive of gross exaggeration of psychopathology as there were several indications throughout the evaluation that supported this conclusion, including inconsistent self-reporting and reporting of symptoms that were extremely unusual, rare, or nonsensical. The February 2010 VA examiner reported it was possible that the Veteran did manifest actual psychological distress and was also exaggerating the nature and extent of his difficulties; however, it was not possible to determine the presence of any actual psychopathology due to his response pattern. An August 2010 VA examiner also found, in part, because of the Veteran’s inconsistencies upon current evaluation, his performance on the mental status examination and because he exhibited gross exaggeration of psychopathology in February of 2010, it was suspected the Veteran was exaggerating symptoms of PTSD. In this regard, a July 2018 private examiner generally disputed the findings of malingering and exaggeration, and explained in 2010, the Veteran was beginning to show signs of dementia and an individual with dementia, which he clearly had, could not be expected to complete valid testing due to mental confusion. However, in any event, as discussed above, these findings are noted dated proximate to the appeal period, and thus, have limited probative value. Turning the evidence during the pendency of the appeal, a February 2013 TBI disability benefits questionnaire was obtained. The February 2013 VA examiner endorsed, as to the facet of memory, attention, concentration, and executive functions, a score of total. However, the February 2013 VA examiner explained this score indicated the Veteran had dementia on administered testing, they were unsure if the Veteran put in true effort, and he definitely needed formal neuro-psychological testing to sort things out. The February 2013 VA examiner also found the Veteran’s facet of conscious was normal, and the facets of orientation, and motor activity, communication all scored a 0, judgement, visual spatial orientation, subjective symptoms, and neurobehavioral effects all scored a 1, and social interaction scored a 2. The February 2013 VA examiner also found the Veteran had subjective symptoms, or any mental, physical or neurological conditions, or residuals attributable to a TBI, which consisted of hearing loss and/or tinnitus, gait, coordination, and balance, headaches, including migraine headaches, Meniere’s disease and a mental disorder. However, the February 2013 VA examiner also found, per subsequent neuropsychiatric symptoms testing, cognitive deficits seen on examination were from poor efforts/feigning and unlikely from mild TBI years ago. The February 2013 VA examiner found no evidence of any TBI residuals and noted the Veteran worked as Certified Nursing Assistant for 22 years without any problems. The February 2013 TBI VA examiner’s findings lack probative value because, as discussed, for the facet memory, attention, concentration, and executive functions, the examiner did not provide reliable findings as it was explained such indicated dementia, it was unclear if the Veteran put in true effort and additional testing was necessary. Further, February 2013 VA examiner’s findings lack probative value as the examiner provided inconsistent findings. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). For example, the February 2013 VA examiner found the Veteran had residuals attributable to a TBI which consisted of hearing loss and/or tinnitus, gait, coordination, and balance, headaches, including migraine headaches, Meniere’s disease and a mental disorder but also stated there was no evidence of any TBI residuals. Thus, the Board does not assign any probative value the February 2013 VA examiner’s findings. Thereafter, a May 2015 TBI disability benefits questionnaire was obtained. The May 2015 VA examiner found the facets of motor activity, subjective symptoms and communication all scored a 0 and consciousness was normal. The May 2015 VA examiner also found the Veteran had subjective symptoms, or any mental, physical or neurological conditions, or residuals attributable to a TBI, which consisted only of visual impairment. In this regard, a June 2015 eye conditions disability benefits questionnaire endorsed, in part, a diagnosis of photophobia of both eyes due to TBI but noted this condition was not affecting the Veteran’s visual acuity. Additionally, a May 2015 PTSD examiner found, as to the facets not addressed by the TBI VA examiner, specifically the facet of memory, attention, concentration, and executive functions scored a 1, and the facets of judgment, social interaction, orientation, visual spatial orientation and neurobehavioral effects all scored a 0. Thus, the May 2015 VA examiners, in combination, found all facets scored a 0, with the exception of the facet of memory, attention, concentration, and executive functions which scored a 1. However, as to the facet of memory, attention, concentration, and executive functions, the May 2015 PTSD examiner, found although a diagnosis of TBI existed, it was possible to differentiate what portion of the Veteran’s occupational and social impairment was caused by the TBI. Specifically, the May 2015 PTSD examiner explained that based on the apparent character of the Veteran’s injury, and his history of well documented inadequate effort, it was not possible to attribute any of his symptoms of cognitive impairment to his history of reported TBI. Instead, the May 2015 PTSD examiner found, it was more likely than not that the Veteran’s problems in cognitive functioning reflected the effect of co-morbid mental health diagnoses. Similarly, an October 2016 PTSD examiner also noted the Veteran had a diagnosis of TBI and it was possible to differentiate what portion of his occupational and social impairment was caused by the TBI, specifically zero percent was attributed to TBI. Additionally, a July 2018 private examiner found, in part, that the Veteran’s occupational and social impairment was 40 percent attributable to PTSD and 60 percent of whole person impairment was attributable to TBI and dementia. However, the July 2018 private examiner’s finding lacks probative value as it is unclear as to the meaning of whole person impairment, and moreover, the Veteran is not service-connected for dementia. Furthermore, difficulties with memory, attention, concentration, and executive function are contemplated in the assigned evaluation for PTSD. In order to avoid improper pyramiding, a level of 0 must therefore be assigned for this facet. See 38 C.F.R. § 4.14. Thus, as most probative evidence of record reflects a level of 0 for all facets, a compensable evaluation is not warranted. Consistent the May 2015 disability benefit questionnaires discussed above, the other evidence of record, including VA treatment records, do not reflect a compensable evaluation is warranted. The Board acknowledges the Veteran’s assertion that his TBI is more severe than evaluated and in particular, the May 2015 TBI VA examiner documented, in part, that he reported residuals of constant headaches as well as dizziness, tinnitus, hypersensitivity to light and problems with sense of smell and taste. These endorsements are admissible and have been taken into consideration. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability related to his post-concussion syndrome, TBI, or to attribute such symptoms to his service-connected disability. Such competent evidence concerning the nature and extent of the Veteran’s TBI, has been provided by VA May 2015 VA examiners who have objectively examined him. The medical findings directly address the criteria under which his TBI is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and is therefore accorded greater weight than the Veteran’s subjective complaints related to his TBI. Specifically, as discussed above, the Veteran’s reported TBI residuals consist of headaches, dizziness, tinnitus, hypersensitivity to light and problems with sense of smell and taste. In this regard, the May 2015 VA TBI examiner found, as to the Veteran’s reported headaches, given the timeline of start of symptoms and progression, the headaches were less likely than not due to TBI but were at least as likely as not due to a jaw injury. The May 2015 VA TBI examiner also found the Veteran’s reported tinnitus was less likely as not due to TBI, as hearing loss and a jaw injury were more likely contributors. Moreover, the Veteran is already separately service-connected for headaches and tinnitus. Thus, these symptoms may not be considered in evaluating the Veteran’s TBI disability rating and further separate ratings for residuals of the TBI for a headaches or tinnitus are not warranted. See 38 C.F.R. § 4.14. As to the Veteran’s reported dizziness, the May 2015 VA TBI examiner documented the Veteran reported dizziness for “years and years” and noted that this symptom had been previously documented by examiners and been found to have an onset five to six years prior to evaluation in 2009, thus, given this timeline, this symptom was not temporally related to TBI. In this regard, a December 2011 VA examiner, who addressed the Veteran’s headaches, documented, in part, that the Veteran’s headache condition existed since 1981, his headaches were described as pain that began around the side of the head on both sides and spread to the top of the head, the pain was like a toothache pain with associated dizziness and further noted the symptoms of the headache condition were lack of concentration, dizziness, ringing in ears, blurred vision, and general fatigue. Similarly, a November 2013 ear conditions disability benefits questionnaire endorsed a diagnosis of disequilibrium associated with headaches, specifically and found the Veteran’s dizziness was related to vascular headache but no peripheral vestibular pathology was seen upon current examination. Additionally, an October 2013 hearing and loss tinnitus disability benefits questionnaire documented the Veteran reported as to his tinnitus, when ringing begins he becomes dizzy and light-headed. Thus, the weigh the evidence reflects the Veteran’s reported dizziness is not related to his TBI. Further, as discussed above, the May 2015 VA TBI examiner found the Veteran had subjective symptoms, or any mental, physical or neurological conditions, or residuals attributable to a TBI, which consisted only of visual impairment, which was diagnosed as photophobia by a June 2015 examiner and found to not affect the Veteran’s visual acuity. In this regard, review of the rating schedule reveals that photophobia is not listed as a disability; this itself would not prevent service connection and evaluation, as not all conditions are expected to be listed and rating by analogy is permissible. 38 C.F.R. §§ 4.20, 4.21. However, the schedule also lists photophobia as a symptom for TBI, where it is among the criteria for evaluation based on subjective symptoms. As discussed above, the May 2015 TBI VA examiner found the Veteran’s subjective symptoms scored a 0, specifically his he had subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. Further, photophobia is additionally a common symptom of migraine headaches, and part of the constellation making up a prostrating attack and the Veteran had been service connected for muscle tension and posttraumatic headaches under Diagnostic Code 8100 for migraines. The Board therefore finds that photophobia is not a disability in and of itself, but is only a sign or symptom of others. Accordingly, service connection for photophobia as an independent disability is not warranted. Complete loss of sense of smell is evaluated under Diagnostic Code 6275 and complete loss of sense of smell is evaluated Diagnostic Code 6276. 38 C.F.R. § 4.87a. However, evaluation will be assigned under these Diagnostic Codes only if there is an anatomical or pathological basis for the condition. 38 C.F.R. § 4.87a, Note. In this regard, the June 2015 TBI VA examiner documented the Veteran was able to identify 1/3 smells and could not identify tastes of bitter and sweet, thus complete loss of smell or taste was not demonstrated as necessary for a compensable rating under Diagnostic Code 6275 or Diagnostic Code 6276 nor was there an anatomical or pathological basis for either condition. In this regard, the June 2015 TBI VA examiner explained that these were subjective finding due to an unknown condition but not due to TBI. Thus, service connection for loss of smell or loss of taste as independent disabilities is not warranted. Additionally, in terms of TBI residuals, the Veteran’s representative cited to the 2013 VA examiner’s finding of TBI residuals which additionally consisted of hearing loss, gait impairment, Meniere’s disease, and a mental condition. However, as discussed above, the Board has found the February 2013 TBI VA examiner’s findings lack probative value. Moreover, the Veteran is service-connected for left ear hearing loss and PTSD with secondary major depressive disorder. Thus, these symptoms may not be considered in evaluating the Veteran’s TBI disability rating and further separate ratings for residuals of the TBI for a for these disabilities not warranted. Id. Further, there is no indication that the Veteran has been diagnosed with Meniere’s disease and his reported dizziness was addressed by the May 2015 VA TBI examiner, as discussed above. Finally, in terms of gait impairment, the May 2015 VA TBI examiner documented, in part, that the Veteran, as to tandem gait, had initial difficulty but corrected for balance losses, and was within normal limits. Further, the May 2015 VA TBI examiner generally characterized his gait as intact and noted there was no assistive device present. Thus, a separate or a higher rating based on manifestations related to hearing loss, gait impairment, Meniere’s disease or a mental condition are not warranted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record with respect to his TBI. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the preponderance of the evidence is against a compensable rating for the Veteran’s TBI. Thus, the Board finds that the Veteran is not entitled to a compensable initial rating for his TBI at any time during the rating period on appeal. In making this determination the Board considered the application of “staged” ratings, but found no additional distinctive periods where the Veteran’s service-connected TBI, met or nearly approximated the criteria for a compensable rating. In reaching this determination, the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against a compensable rating, the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.