Citation Nr: 20026331 Decision Date: 04/16/20 Archive Date: 04/16/20 DOCKET NO. 17-22 379 DATE: April 16, 2020 ORDER Entitlement to an initial evaluation in excess of 30 percent for headaches is dismissed. For the entire period on appeal, entitlement to a 40 percent rating, but no higher, for the service-connected traumatic brain injury (TBI) is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. In October 2017, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the Veteran through his authorized representative that a withdrawal of the claim for an increased initial evaluation for headaches was requested. 2. The Veteran’s TBI manifests with some overlapping and duplicative symptoms of his service-connected posttraumatic stress disorder (PTSD) and headaches; the TBI also manifests with objectively-tested mild attention impairment which is a separate and distinct symptom and is not encompassed in the evaluations of his other separately compensable disabilities; and, no other separate and distinct symptoms of the TBI manifest in impairment in any schedular facet with a score greater than 2.   CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met for the claim for an initial evaluation in excess of 30 percent for headaches. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for a 40 percent rating, but no higher, for TBI are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to July 1976. This matter is on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2017 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested a Board hearing by live videoconference. However, on his behalf, his representative withdrew the hearing request in a March 2019 letter. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(e) (2018) (providing that a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing). Increased Rating 1. Headaches In an October 2017 written statement submitted by the Veteran through his representative, the Veteran requested a withdrawal of his appeal for an increased rating for his service-connected headaches. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by an authorized representative. 38 C.F.R. § 20.204. Accordingly, the Board no longer has jurisdiction to review this issue on appeal, and it is dismissed. 2. TBI The Veteran contends that he is entitled to a compensable rating for his service-connected TBI. In an October 2017 brief, the Veteran’s attorney stated that the Veteran’s TBI evaluation was a reduction that denied the Veteran procedural due process. 38 C.F.R. § 3.105(e) contains its own notice and due process requirements before a rating reduction can be implemented. When the procedures of 38 C.F.R. § 3.105(e) are applicable, VA must comply with these provisions rather than the notice and duty provisions in the Veterans Claims Assistance Act of 2000. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993). However, the record reflects that the provisions of 38 C.F.R. § 3.105(e) do not apply because there was not in fact a reduction in the Veteran’s rating. See also 38 C.F.R. § 3.951(b). The Veteran was initially granted service connection for a TBI in a September 2009 rating decision and assigned a 40 percent rating. The November 2014 decision on appeal continued the 40 percent rating. During the course of the appeal, in an April 2017 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) with an evaluation of 70 percent, increased the Veteran’s evaluation for headaches from 0 percent to 30 percent, and decreased the Veteran’s evaluation for a TBI from 40 percent to 0 percent. The RO explained that the disabilities had similar overlapping symptomatology and that such symptoms could only be used in one evaluation and could not be duplicated as such would be pyramiding under 38 C.F.R. § 4.14. The rating decision indicates the RO determined that the Veteran symptoms were contemplated by the 70 percent rating for PTSD, and assigned a higher rating under those criteria, rather than the lower 40 percent rating for TBI. Such separate evaluations are specifically contemplated by the TBI rating criteria. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Therefore, the Board finds that the symptoms of the Veteran’s TBI were simply recharacterized into multiple diagnostic codes in accordance with the rating criteria and were ultimately increased, not reduced. The regulations governing the reduction of ratings are therefore inapplicable, and the Board will proceed to the merits of the case. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability, and separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). As will be discussed below, the record reflects that the Veteran is service-connected for PTSD rated under DC 9411 with an evaluation of 70 percent from January 31, 2012 and headaches rated under DC 8100 with an evaluation of 30 percent from January 31, 2012. Moreover, as will be discussed in greater detail below, the record reflects that some of the symptoms of these disabilities overlap with the symptoms of the Veteran’s TBI. As such, any overlapping and duplicative symptoms will not be encompassed in the Veteran’s assignment of a rating for his TBI, as doing so would result in impermissible pyramiding. The Veteran’s TBI is rated under Diagnostic Code 8045. 38 C.F.R. § 4.124a. Under DC 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of impairment requires evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. 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. They are evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” whether or not they are part of cognitive impairment. However, a rater is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headaches, 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 (including neurological) dysfunction is evaluated based on the following list, under an appropriate Diagnostic Code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. Residuals not listed above that are reported on an examination are evaluated under the most appropriate Diagnostic Code. 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. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” 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.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100-percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation is assigned 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Note (1) to Diagnostic Code 8045 states: There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2) to Diagnostic Code 8045 states: Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3) to Diagnostic Code 8045 states: “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4) to Diagnostic Code 8045 states: The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of 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). As noted above, the Veteran is currently service-connected for PTSD and migraine headaches, and these conditions share overlapping symptoms with the Veteran’s TBI. The Veteran’s PTSD is rated under DC 9411 using the general rating formula for mental disorders, and his headaches are rated under DC 8100. The schedular criteria identify the various symptoms contemplated in the Veteran’s current assignments for his separate service-connected disabilities. Regarding the Veteran’s PTSD evaluation under DC 9411, the Veteran’s 70 percent rating considers occupational and social impairment, with deficiencies in most areas, such as work, school family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideations; 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 (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 work like settings); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. Regarding the Veteran’s separate rating for headaches under DC 8100, the Veteran’s 30 percent disability rating contemplates migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. In this case, the Veteran was provided with a VA examination in October 2013 for his PTSD. The examiner stated that many of the Veteran’s symptoms, such as sleep disturbance, concentration, and focus, are also similar to symptoms of depression and anxiety and cannot be differentiated without mere speculation. She identified the following symptoms as being applicable to the Veteran’s anxiety NOS and depressive disorder NOS: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. The Veteran was provided with a VA examination for his TBI in July 2014. The examiner noted objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. On the Delayed Recall section of the MOCA cognitive test, he scored 4 of 5, and on the Attention section he scored 2 of 6. He noted that judgment was normal. He noted that the Veteran avoids people much of the time and typically sits alone. He noted that the Veteran is always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was mildly impaired, as the Veteran occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. He was able to use assistive devices such as GPS. On the Visuospatial Section of the MOCA, he scored 3 of 5. The Veteran brought someone to the appointment with him because he was worried about getting lost in unfamiliar surroundings. The examiner noted three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. He describes these subjective symptoms as frequent insomnia, occasional headaches with hypersensitivity to light, and anxiety. The examiner noted one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction or both, but do not preclude them. He described these as being occasional irritability and mood, occasional verbal aggression, and lack of motivation. The Veteran was able to communicate by spoken and written language and consciousness was normal. The examiner noted subjective symptoms of headaches as attributable to the TBI. He noted that the Veteran’s TBI residuals impact his ability to work because his problems with memory have had a negative impact on his work, he has forgotten where he put tools or other necessary items, and he has forgotten to do things that were noticed by his boss/supervisor. An April 2015 Disability Benefits Questionnaire completed by private Dr. C.T. notes symptom overlay between TBI, PTSD, anxiety, and depression and stated that it was not possible to differentiate what portion of the occupational and social impairment indicated is caused by the TBI. Dr. C.T. noted symptoms of recurrent and distressing recollections, recurrent distressing dreams, intense psychological distress, efforts to avoid thoughts, efforts to avoid activities, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement, difficulty falling or staying asleep, difficulty concentrating, and hypervigilance. He noted symptoms of depressed mood, anxiety, chronic sleep impairment, impairment of short- and long-term memory, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. He noted that the chronic insomnia, daytime intrusive thoughts, and nightmares are associated with PTSD and that the migraines are associated with the TBI. He noted ease of distraction and difficulty with short-term memory deficits. May 2015 private treatment records contain opinions from Dr. C.T. assigning various scores for each facet contemplated in DC 8045. However, the opinion does not reflect consideration of which symptoms have already been attributed to the Veteran’s other service-connected disabilities (i.e., pyramiding). Thus, this opinion is only probative to the extent that it provides a competent identification of the Veteran’s present symptoms. Dr. C.T. noted that the Veteran ambulates independently and has ringing in the ears with recurrent headaches and insomnia. He also noted migraines with nausea and vomiting with photosensitivity to light. He also noted symptoms of depression, anxiety, nervousness, stress, and symptoms of PTSD. The Veteran reported particular difficulties maintaining concentration and attention sufficient for task completion, being easily distracted, and short-term memory deficits, to include forgetting appointments, where he places things, names, medications, directions, and cooking. The Veteran was able to provide information on himself, was responsive to inquiry, and was fully oriented to time, place, person, and situation. Associations were intact and thought processes were mildly slowed but intact. During a November 2016 VA examination, the examiner noted PTSD symptoms of frequent anger and sadness, trouble sleeping, irritability, suicidal ideation with no current plans, and auditory hallucinations that made negative statements. He noted PTSD symptoms of recurrent distressing memories and dreams, avoidance, persistent negative emotional state, markedly diminished interest or participation in activities, feelings of detachment or estrangement, irritability, hypervigilance, problems with concentration, and sleep disturbances. He also noted PTSD symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short- and long- term memory, disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, suicidal ideation, and persistent delusions or hallucinations. He noted that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In October 2017, Dr. C.T. provided an additional opinion which delineated between the Veteran’s various overlapping symptoms. He opined that the Veteran’s memory and judgment deficits are solely or predominantly due to TBI. He also stated that he was convinced that the psychological testing scores provide sufficient medical evidence that the conditions can be differentiated with respect to memory and judgment. Dr. C.T. supported his opinion with objective testing and evaluation. Although this opinion reflects consideration of the concept of pyramiding, the primary question is not necessarily whether any individual symptom is solely attributable to the Veteran’s TBI. Instead, the proper inquiry is whether such symptoms have been encompassed in the Veteran’s separate evaluations. Thus, if any symptom of a facet has already been encompassed in a separate evaluation, it cannot also be considered when assigning an evaluation for the service-connected TBI because this would ultimately result in duplicative compensation for the same symptom. Regarding the facet of memory, attention, concentration, or executive functions, the Board finds that a score of 2 is warranted based on objective evidence on testing of mild impairment of attention resulting in mild functional impairment. The April 2017 rating decision which assigned a 70 percent evaluation noted impairment of short- and long- term memory as a symptom of the Veteran’s PTSD. Thus, this symptom cannot also be considered when considering the evaluation of the Veteran’s TBI, as the symptom is already subject to compensation. However, the record supports a finding of objective evidence on testing of mild impairment of attention. Specifically, the July 2014 VA examination notes objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment” with a score of 2 of 6 on the Attention section of the MOCA. Additionally, as discussed above, the October 2013 VA examination also notes symptoms of impaired attention and concentration. Symptoms related to attention issues (i.e., concentration, focus, etc.) are not expressly contemplated in the schedular criteria of the general rating formula for mental disorders or under the schedular criteria for migraine headaches. Moreover, the April 2017 rating decision reflects that the RO considered several symptoms when evaluating the Veteran’s PTSD and migraines but did not note attention impairment as a symptom encompassed in those separate evaluations. The Board therefore finds that the Veteran’s objectively-tested mild attention impairment is a separate and distinct symptom which is not duplicative or overlapping with the symptoms considered for his separately service-connected psychiatric or migraine headache disabilities. Further, the facets of judgment and social interaction are duplicative of the symptoms contemplated in the general rating formula for mental disorders. The Veteran’s current 70 percent evaluation for PTSD encompasses symptoms related to occupational and social impairment with deficiencies in the areas such as work, school, family relations, judgment, thinking, or mood. Thus, a score of 0 is warranted for these facets. Regarding the orientation facet, the evidence does not support a finding of disorientation to person, time, place or situation, and a score of 0 is warranted. Regarding motor activity, the evidence reflects that the Veteran’s motor activity is normal. Thus, a score of 0 is warranted. Regarding visual spatial orientation, the Veteran competently and credibly reported mild impairment during the July 2014 VA examination and stated that he occasionally gets lost in unfamiliar surroundings and is able to use assistive devices such as GPS. Thus, a score of 1 is warranted. Regarding subjective symptoms, the schedular criteria does not allow for a score in excess of 2. Moreover, the Veteran’s subjective symptoms of daily mild to moderate headaches are encompassed in his evaluation for headaches, while anxiety and insomnia are contemplated in his psychiatric disability evaluation. Thus, a score of 0 is warranted. Moreover, the Veteran’s neurobehavioral symptoms, to include irritability, are encompassed in the Veteran’s PTSD rating, which specifically contemplates disturbances of mood. Thus, a score of 0 is warranted. Regarding communication and consciousness, the record contains no evidence indicating the Veteran experiences impairment in either facet. Thus, a score of 0 is warranted. In summary, the Board finds that the Veteran’s symptoms meet the criteria for a score of 2 due to objectively-tested mild attention impairment that results in mild functional impairment. This attention impairment is not clearly compensated for in the separately assigned psychiatric and migraine headache evaluations. The Veteran’s TBI does not manifest with separate and distinct symptoms which manifest in any facet with a score greater than 2. Based on these findings, a 40 percent rating, and no higher, is warranted under Code 8045. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.21, 4.124a, Diagnostic Code (DC) 8045. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.