Citation Nr: 21000245 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-04 924 DATE: January 4, 2021 ORDER 1. Prior to March 10, 2020, an initial rating of 40 percent, but no higher, for Traumatic Brain Injury (TBI) is granted. 2. From March 10, 2020 forward, a rating in excess of 40 percent for TBI is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Prior to March 10, 2020, the Veteran’s TBI is shown to have a highest level of severity of “2” for the applicable ten facets. 2. Since March 10, 2020, the evidence does not show the Veteran’s symptoms are severe or pervasive enough to warrant a level 3. CONCLUSION OF LAW 1. The criteria for establishing an initial 40 percent evaluation, but no higher, for TBI prior to March 10, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8045. 2. The criteria for a rating in excess of 40 percent for TBI since March 10, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1964 to December 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. On his January 2015 VA Form 9, the Veteran requested a videoconference hearing before the Board. The hearing was scheduled for August 2, 2018, at the Detroit RO, and notice of the hearing date and place was provided to both the Veteran and his representative. However, the Veteran did not report for the hearing, and no request for postponement was received and granted prior to the hearing date. Under 38 C.F.R. § 20.704 (d), when a veteran fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn. Therefore, this case will be processed as though the request for a hearing was withdrawn, and the Board can now proceed to appellate review. This issue was previously before the Board in February 2020 and remanded for additional development, including obtaining a VA examination to assess the severity of the Veteran’s TBI. In a rating decision dated in September 2020, the RO increased the disability rating for TBI to 40 percent, effective March 10, 2020, and a Supplemental Statement of the Case (SSOC) was issued in September 2020. In light of these actions, the Board finds that there has been substantial compliance with the previous remand directives for an initial increased rating for residuals of a TBI. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, a VA examination dated in March 2020, indicates that the Veteran’s residual conditions due to his TBI impact his ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Prior to March 10, 2020, an initial rating of 40 percent, but no higher, for Traumatic Brain Injury (TBI) is granted. 2. From March 10, 2020 forward, a rating in excess of 40 percent for TBI is denied. The Veteran has been assigned an initial noncompensable rating for his service connected TBI, effective February 27, 2013, and a 40 percent rating from March 10, 2020 forward. The Veteran has also been awarded service connection for seizures and vestibulopathy, residual conditions of TBI, separately. The Veteran asserts that the symptoms of his TBI are worse than initially rated. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the case of an initial increased rating claim, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different rating for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). If there is a question as to which two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). DC 8045 provides for the evaluation of traumatic brain injury residuals. See 38 C.F.R. § 4.124a. There are three main areas of dysfunction listed that may result from traumatic brain injuries and have profound effects on functioning: cognitive (which is common in varying degrees after traumatic brain injury), 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. 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. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to separately evaluate 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, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 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 Traumatic Brain Injury Not Otherwise Classified.” Id. VA is to evaluate physical (including neurological) dysfunction 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, DC 8045, that are reported on an examination, evaluate under the most appropriate DC. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of a traumatic brain injury 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. 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. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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): 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): “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): The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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. The Veteran underwent a VA examination in April 2014 to assess his TBI in relation to the ten facets. In memory, attention, concentration, and executive functions, the Veteran was provided a level (2) for objective findings of mild memory impairment. It was noted that the Veteran reported difficulty remembering his daily chores. He was deemed to have normal judgment (0). His social interaction was routinely appropriate (0). His orientation, motor activity, and visual spatial orientation were all normal (0). He was noted to have no subjective symptoms (0). He had one or more neurobehavioral effects that do not interfere with workplace or social interaction, such as irritability and anger (1). He was able to communicate by spoken and written language and able to comprehend spoken and written language (0). Finally, he had normal consciousness (0). Residuals attributable to his TBI were reported as seizures and headaches. The Board finds these objective findings warrant a level 2, entitling the Veteran to a 40 percent rating. The Veteran underwent another VA examination in March 2020 to assess his TBI in relation to the ten facets. In memory, attention, concentration, and executive functions, the Veteran was provided a (2) level for objective findings of mild memory impairment. It was noted that the Veteran reported difficulty remembering names and finding words. He was deemed to have moderately impaired judgment due to difficulty understanding simple questions and the problems that could arise from his decisions (2). Social interaction was routinely appropriate (0). His orientation was occasionally disoriented to two of the four aspects of orientation (2) An inability to tell the time of day and where he is was noted as a description of the Veteran’s disorientation. Motor activity was noted to be mildly decreased (2). Visual spatial orientation was normal (0). He was noted to have subjective symptoms that do not interfere with work (fatigue and dizziness) (1). He had one or more neurobehavioral effects that occasionally interfere with workplace or social interaction, such as moodiness, impulsive, and physically and verbally aggressive behavior. (2) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. (1) Finally, he had normal consciousness (0). Seizures and vestibulopathy were noted as attributable residuals of TBI. The Board finds these objective findings warrant a level 2, entitling the Veteran to a 40 percent rating. A higher rating is not warranted as the evidence does not show the Veteran’s symptoms are severe or pervasive enough to warrant a level 3. Specifically, the evidence does not reflect objective evidence of moderate memory impairment, moderately severely impaired judgment, social interaction that is inappropriate most or all of the time, motor activity moderately decreased due to apraxia, or moderately severely impaired visual spatial orientation. Furthermore, the record does not reflect that he gets lost even in familiar settings or would be unable to use an assistive device such as a GPS. He does not have three or more subjective symptoms moderately affecting work that are not separately rated, or neurobehavioral effects that preclude workplace or social interaction. Finally, he does not experience an inability to communicate at least half the time. Considering the evidence of record, for the entire period on appeal, the Veteran is entitled to a 40 percent rating, but no higher, for his TBI. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). It is unclear if the Veteran is currently employed. However, the March 2020 examiner concluded that the Veteran’s TBI residuals impacted his ability to work. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required before the Board decides the TDIU issue. The matters are REMANDED for the following action: 1. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. 2. Thereafter, adjudicate the claim of entitlement to a TDIU. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, a statement of the case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.