Citation Nr: 20021986 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 07-05 275 DATE: March 30, 2020 ORDER Entitlement to a total disability rating for posttraumatic stress disorder (PTSD) and residuals of brain trauma with dementia is granted. Entitlement to a separate 10 percent disability rating for tinnitus associated with PTSD and residuals of brain trauma with dementia is granted. Entitlement to a separate, noncompensable disability rating for tension headaches associated with PTSD and residuals of brain trauma with dementia is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s residuals of brain trauma and PTSD meet a level of impairment of “2” for the memory, attention, concentration, and executive function facet, and are manifested by objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. 2. For the entire period on appeal, the Veteran’s residuals of brain trauma and PTSD are manifested by: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); circumstantial, circumlocutory, or stereotyped speech; 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; depressed mood; anxiety; suspiciousness; and chronic sleep impairment. 3. For the entire period on appeal, the Veteran’s tinnitus is a residual of PTSD and residuals of brain trauma with dementia and is recurrent. 4. For the entire period on appeal, the Veteran’s tension headaches are a residual of PTSD and residuals of brain trauma with dementia and are manifested by less frequent attacks that are not characteristic prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 100 percent disability rating for residuals of brain trauma and PTSD have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 3.655, 4.124a, Diagnostic Code 8045, 4.130, Diagnostic Code 9411. 2. The criteria for the assignment of a separate 10 percent disability rating for tinnitus has been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.87, Diagnostic Code 6260, 4.124a, Diagnostic Code 8045. 3. The criteria for the assignment of a compensable rating for tension headaches have not been met or approximated. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Codes 8045, 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes the Veteran was scheduled for a TBI examination in September 2019. The Veteran failed to appear at the VA examination, and has not presented good cause for the failure to appear. The Board finds that good cause has not been shown for the Veteran’s failure to report for his scheduled examination. There is also no indication that the Veteran did not receive notice of the examination, and he has not requested the VA examination be rescheduled. The Veteran’s mailing address was verified in August 2019. Additionally, in the October 2019 supplemental statement of the case (SSOC) the Veteran was provided written notice of the failure to attend the VA examination. Given the AOJ actions and the Veteran’s choice not to submit to the September 2019 examination, the Board finds that VA has no remaining duty with regard to a medical examination and opinion in conjunction with this claim. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. In this case however, given the procedural history of this matter and extensive evidence of record, a denial as of a matter of law is not deemed warranted. Thus, the Board will adjudicate the claim based on the evidence of record as it is currently developed. Legal Criteria Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Residuals of TBI are evaluated under Diagnostic Code 8045 of the Rating Schedule. 38 C.F.R. § 4.124a. There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, 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. Cognitive impairment is evaluated under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table (hereinafter “Evaluation of Cognitive Impairment of TBI” table). Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the “Evaluation of Residuals of TBI” table. However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, are to be evaluated separately, even if that diagnosis is based on subjective symptoms, rather than under the Evaluation of Cognitive Impairment of TBI table. Emotional/behavioral dysfunction is evaluated under § 4.130 (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 Evaluation of Cognitive Impairment of TBI table. 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. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, if the same signs and symptoms are not used to support more than one evaluation and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the Evaluation of Cognitive Impairment of TBI table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The Evaluation of Cognitive Impairment of TBI table contains 10 important facets of 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.” 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. Of particular relevance to this case is the memory, attention, concentration, and executive functions facet. A level of impairment of “0” is assigned for no complaints of impairment of memory, attention, concentration, or executive functions. A level of impairment of “1” is assigned for evidence of 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. A level of impairment of “2” is assigned for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. A level of impairment of “3” is assigned for objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. A “total” level of impairment is assigned for objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. There may be an overlap of manifestations of conditions evaluated under the Evaluation of Cognitive Impairment of TBI table with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. 38 C.F.R. § 4.124a, Note (1). 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. If the manifestations are clearly separable, assign a separate evaluation for each condition. Under the General Formula for Mental Disorders, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Formula, a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Pyramiding, known as the evaluation of the same disability or same manifestation under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. Analysis The Veteran is currently rated as 50 percent disabling for PTSD and residuals of brain trauma (hereinafter “TBI”) with dementia. a. Increased Rating The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 50 percent, to include whether separate evaluations are appropriate for the Veteran’s manifestations of TBI residuals and PTSD. As an initial matter, the Board has considered whether separate ratings should be assigned for the Veteran’s TBI residuals and PTSD. Having reviewed the record, the Board finds that a single evaluation is appropriate because the Veteran’s comorbid psychiatric symptoms and TBI residuals cannot be clearly separated. If manifestations of conditions evaluated under the Evaluation of Cognitive Impairment of TBI table and manifestations of a comorbid mental disorder that can be evaluated under a separate diagnostic code are clearly separable, a separate evaluation for each condition should be assigned. 38 C.F.R. § 4.124a, Note (1). However, if the manifestations cannot be clearly separated, a single evaluation should be assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. Here, the record contains several conflicting medical opinions on whether the Veteran’s cognitive, emotional, behavioral, and physical manifestations are attributable to his brain trauma residuals, PTSD, and nonservice-connected disabilities. A November 2006 VA examiner opined that the Veteran’s cognitive problems or psychosis, including chronic mood instability, aggressiveness, irritability and poor impulse control, were due to nonservice connected chronic substance abuse, head trauma after service such as fighting and auto accidents, malingering, and/or an antisocial personality disorder. A September 2009 examiner opined that the Veteran’s memory difficulties do not appear to exceed the recall, retrieval, and attentional impairment that could result from his mood disorder and from distraction from pain. A September 2012 examiner opined that cognitive and psychological symptoms are less likely than not related to residuals of the Veteran’s TBI diagnosis and more likely than not related to his current mental health diagnosis of PTSD, other anxiety and mood symptoms, psychosocial stressors, chronic pain, and sleep disturbances. He additionally opined that the Veteran’s attention, concentration, and short-term memory problems are less likely as not due to the residual effects of mild TBI and more likely than not due to his mental health symptoms. A February 2015 examiner opined that the Veteran’s neuro-irritability, memory deficit, executive dysfunction (e.g. attention, concentration, organization judgment deficits), speech, depression, anger, aggression, and physicality could not be attributed exclusively to either TBI or PTSD without resorting to mere conjecture. In light of the conflicting evidence, the Board cannot find that these manifestations are clearly separable. Additionally, the Veteran failed to appear for or provide good cause for failing to appear for a TBI examination in September 2019 that could have provided further clarification. As symptoms are not clearly separable and considering the prohibition against pyramiding, the Board finds that a single evaluation is appropriate for both residuals TBI and PTSD symptoms. See 38 C.F.R. § 4.14. The Board’s analysis now turns to the Veteran’s symptoms and an assessment of the diagnostic criteria that would allow for the better assessment of the Veteran’s overall impaired functioning. Having reviewed the record, the Board finds that the diagnostic criteria under the General Rating Formula for Mental Disorders would allow for the highest rating available, a total disability rating. The collective evidence, to include November 2006, September 2009, October 2010, April 2011, September 2012, and February 2015 VA examinations, treatment records, and lay statements, indicate that the Veteran’s TBI residuals and PTSD are manifested by total occupational and social impairment. With respect to the facets of the Evaluation of Cognitive Impairment of TBI table, the Veteran’s TBI residuals and PTSD are manifested by: objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; mildly impaired judgment, for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; social interaction routinely appropriate; always oriented to person, time, place, and situation; motor activity normal; visual spatial orientation normal; three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships such as tension headaches, tinnitus, frequent insomnia, and postural hypotension; one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language; and consciousness normal. See November 2006, September 2009, October 2010, April 2011, September 2012, and February 2015 VA Examinations. With respect to the General Rating Formula for Mental Disorders, the Veteran’s TBI residuals and PTSD are manifested by: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); circumstantial, circumlocutory, or stereotyped speech; 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; depressed mood; anxiety; suspiciousness; and chronic sleep impairment. See November 2006, September 2009, October 2010, April 2011, September 2012, and February 2015 VA Examinations. When evaluating the diagnostic criteria, the Board notes that the General Rating Formula for Mental Disorders would allow for the highest rating, a total disability rating. The Board acknowledges that examiners have determined that the Veteran’s symptoms result in occupational and social impairment with reduced reliability and productivity only. However, the Board finds that the evidence establishes that TBI and PTSD symptoms, cumulatively, result in total occupational and social impairment. The evidence shows that the Veteran has been found to have symptoms that are enumerated in the 100 percent rating criteria of the General Rating Formula for Mental Disorders, such as gross impairment in thought processes or communication, grossly inappropriate behavior, and persistent danger of hurting self or others. Moreover, the evidence establishes that at least some of the Veteran’s cognitive difficulties have been found to be due to, in part, TBI, to include mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The combination of the Veteran’s emotional, behavioral, memory, attention, concentration, executive functions, judgment, social interaction, orientation, motor activity, and neurobehavioral effects, and communication more nearly approximate a total disability rating under the General Rating Formula for Mental Disorders, pursuant to Diagnostic Code 9411. In contrast, when considering the Evaluation of Cognitive Impairment of TBI table, the highest rating allowed would be, at most, 40 percent. Based on the record, the Veteran’s highest level of impairment under the table would be a level 2, for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. A level 2 corresponds with a 40 percent rating. Considering the above, the Board finds that a single 100 percent disability rating, is warranted for the Veteran’s service-connected PTSD and residuals of brain trauma with dementia under the General Rating Formula for Mental Disorders, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. b. Additional Considerations As a final matter, the Board finds that the evidence establishes that separate ratings are warranted for the residuals of tinnitus and tension headaches. With respect to tinnitus, a 10 percent disability rating is warranted under 38 C.F.R. § 4.87, Diagnostic Code 6260 for the entire period on appeal. The record reflects that the Veteran has reported recurrent tinnitus since at least August 2005 and intermittently since then. Additionally, a February 2015 examiner opined that the Veteran’s TBI residuals included subjective complaints of tinnitus. With respect to tension headaches, a noncompensable disability rating is warranted under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Though the record conflicting opinions on whether headaches are a residual of TBI, the Board will resolve doubt in the Veteran’s favor as the evidence is at least in equipoise. September 2009, October 2010, and February 2015 examiners opined that the Veteran’s TBI residuals included tension headaches. Additionally. the record reflects that the Veteran has less frequent attacks that are not characteristic prostrating attacks. After eliciting reported symptoms such as nausea and sensitivity to light and sound, the September 2012 and February 2015 examiners ultimately found that the Veteran’s attacks were not prostrating. As such, a noncompensable rating is warranted. The Board finds that a separate rating is not warranted for postural hypotension as a residual of TBI. Though a February 2015 examiner opined that the Veteran’s TBI residuals included postural hypotension, a separate evaluation for postural hypotension would violate the prohibition against pyramiding. Here, the Veteran’s postural hypotension is manifested by dizziness or imbalance upon standing up. This symptom, however, is contemplated by the Veteran’s TBI and PTSD rating, particularly under the motor activity facet and impairment in occupational setting. Moreover, any gait imbalance is already compensated by the Veteran’s service-connected right knee disability. In sum, the Board finds that the weight of the evidence establishes that a 100 percent disability rating is warranted for the entire period on appeal for the Veteran’s service-connected PTSD and residuals of brain trauma with dementia under the General Rating Formula for Mental Disorders, pursuant to Diagnostic Code 9411. A separate 10 percent disability rating is warranted for recurrent tinnitus for the entire period on appeal under 38 C.F.R. § 4.87, Diagnostic Code 6260. A separate, noncompensable rating is warranted for tension headaches for the entire period on appeal under 38 C.F.R. § 4.124a, Diagnostic Code 8100. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Vang, Department of Veterans Affairs 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.