Citation Nr: 21001529 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 10-32 102 DATE: January 8, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for residuals of traumatic brain injury with unspecified anxiety disorder to include symptoms of vertigo/dizziness is denied. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy prior to October 27, 2015 is denied. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy prior to October 27, 2015 is denied. Entitlement to a rating in excess of 40 percent for right upper extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s residuals of traumatic brain injury with unspecified anxiety disorder to include symptoms of vertigo/dizziness manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran’s right lower extremity radiculopathy is characterized by moderate incomplete paralysis. 3. The Veteran’s left lower extremity radiculopathy is characterized by moderate incomplete paralysis. 4. The Veteran’s right upper extremity radiculopathy is characterized by moderate incomplete paralysis of the major extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for residuals of traumatic brain injury with unspecified anxiety disorder to include symptoms of vertigo/dizziness have not been met. 38 U.S.C. §§ 1155, 5107 ; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 8045-9413. 2. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy prior to October 27, 2015 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.124a, DC 8520. 3. The criteria for entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy prior to October 27, 2015 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.124a, DC 8520. 4. The criteria for entitlement to a rating in excess of 40 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.124a, DC 8511. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1964 to December 1969. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in June 2017 and October 2020. In November 2017, the Board remanded these matters while also denying the Veteran’s claim for an earlier effective date for the establishment of service connection for anxiety disorder, to include whether there was clear and unmistakable error (CUE) in a January 1972 rating decision for not establishing service connection for an acquired psychiatric disorder. Since that time, a July 2020 rating decision conducted a de novo review and granted an effective date of March 13, 2006. The Board acknowledges the Veteran’s contentions, through his representative, that his service connected TBI residuals warrants an effective date of October 20, 1971 on the basis of CUE. See VA Form 9, August 2020. However, as the Board denied this issue in November 2017 and the appeal has not since been perfected, the matter remaining on appeal regarding the Veteran’s service connected TBI residuals is entitlement to an increased rating. The Board notes that a June 2020 rating decision granted service connection for right and left hip disabilities. As these claims for service connection have been granted in full, they are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board also notes that the Veteran was awarded an effective date of March 13, 2006 for his total disability rating based on individual unemployability due to the Veteran’s service-connected disabilities (TDIU) in a July 2020 rating decision. As the effective date of March 13, 2006 is the effective date for the Veteran’s increased rating claims on appeal, the Board finds that the Veteran has been granted individual unemployability throughout the entire appeal and the issue is not before the Board. C.f. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 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 disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 70 percent for residuals of traumatic brain injury with unspecified anxiety disorder to include symptoms of vertigo/dizziness. In a July 2020 rating decision, the Veteran’s service-connected residuals of TBI with unspecified anxiety disorder was rated at 70 percent disabling, effective March 13, 2006, under Diagnostic Code 8045-9413. Under 38 C.F.R. § 4.124a DC 8045, there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. 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.” Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. 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 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. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified.” 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. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. Each condition is to be evaluated 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. Diagnostic Code 8045 instructs that VA should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” addresses 10 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.” 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 38 C.F.R. § 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. The Veteran is already rated 30 percent disabled for his TBI-related headaches under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100 pertaining to migraines, a 50 percent rating requires that the disability be manifested by very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. A 30 percent rating requires headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. The Veteran is also rated at 30 percent disabled for multilevel degenerative disc disease and facet disease of the cervical spine under DC 5242 and has SMC based on loss of use of both feet, effective October 27, 2015 and SMC based on the need for regular aid and attendance. The evidence shows that the Veteran has unspecified anxiety disorder and that the symptoms of his unspecified anxiety disorder are not differentiable from the symptoms of TBI. See VA Examination, November 2019. As such, a single evaluation will be awarded. In November 2017, the Board remanded this issue to afford the Veteran a new examination to evaluate the current severity of his service-connected anxiety disorder and provide a competent medical examination and opinion to clarify any other residuals of the Veteran’s in-service head injury. In November 2019, a VA TBI examination was obtained where the examiner, a physiatrist, noted that the Veteran has a diagnosis of TBI with current symptoms of double vision, headaches, anxiety, memory deficits, and vertigo. The Veteran has complaints of mild memory loss (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. The examiner noted 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, and is overwhelmed by details. The examiner noted that the Veteran’s wife stated that the Veteran talks excessively and cannot adequately participate in conversations. The examiner noted that the Veteran is always oriented to person, time, place, and situation, and his motor activity and visual spatial orientation are normal. The Veteran’s symptoms of dizziness and vertigo, diplopia, frequent headaches, sensitivity to light and sounds mildly interfere with work, instrumental activities of daily living, or work, family or other close relationships. The examiner noted that the Veteran’s symptoms of inflexibility and unpredictability are neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. The Veteran is able to communicate by written and spoken language, his consciousness is normal, and residuals include visual impairment, headaches, dizziness/vertigo. Finally, the examiner stated that it is impossible to differentiate the Veteran’s symptoms of his TBI from symptoms of his psychiatric disorder. Based on the records, the Veteran seems to have longstanding affective disorders, PTSD, and personality disorders, and is service connected for unspecified anxiety disorder. The Veteran’s mental disorders are likely impacting any/all symptoms that overlap with TBI (headaches, irritability, memory impairment, lack of flexibility etc.) and his headaches are posttraumatic in nature, not cervicogenic or related to his cervical spine disorder. Turning to the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table, the Board notes that each facet was addressed in the November 2019 VA TBI examination. A level of severity of “1” has been assigned for the memory, attention, concentration, and executive functions facet, indicating that there was mild impairment on clinical evaluation. A level of severity “1” has also been assigned for the judgment and neurobehavioral effects. A level of severity of “0” has been assigned for the orientation, communication, visual spatial orientation, and motor activity facets, which indicates that the examiner found evidence of normal functioning in those areas. A level of severity of “2” has been assigned for social interaction and subjective symptoms. Additionally, the examiner opined that it was impossible to differentiate the Veteran’s symptoms of his TBI from symptoms of his psychiatric disorder. Based on the table, a rating of 40 percent would be assigned for the Veteran’s TBI. As noted above, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s diagnosed unspecified anxiety disorder is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9413. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 ideation; obsessional rituals that 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9413. At the November 2019 VA mental disorders examination, the examiner noted that the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran reported that he has been married for 39 years to his second wife and he is close to two of his children. The examiner noted symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner also noted that the Veteran’s TBI residuals and anxiety disorder symptoms overlap making it nearly impossible to state which symptoms are attributable to each disorder. Considering the medical and lay evidence, the Board finds that the Veteran’s disability more closely approximates the picture contemplated by the 70 percent rating throughout the appeal. The evidence demonstrates that the Veteran continually suffers from occupational and social impairment with reduced reliability and productivity with symptoms of anxiety, impaired judgment, panic attacks, chronic sleep impairment, impairment of memory, and difficulty in establishing and maintaining effective work and social relationships. The Veteran is not, however, entitled to a higher, 100 percent rating. The VA examination reports do not show that the Veteran experienced symptoms such as grossly inappropriate behavior; persistent delusions or hallucinations; or persistent danger of hurting self or others. The Veteran did not demonstrate an intermittent inability to perform activities of daily living, including maintenance of minimal hygiene. Moreover, the Veteran reported having a relationship with his wife and children, which reflects that the overall impairment did not more nearly approximate total social impairment. This reflects that the impairment caused by the Veteran’s symptoms did not more nearly approximate the total occupational and social impairment required for a 100 percent rating under the general rating formula. While the Board has considered the applicability of a separate rating unde DC 8045 for symptoms of TBI, the Veteran would not otherwise be entitled to a higher rating. The November 2019 VA examinations found it impossible to delineate the Veteran’s symptoms to either the TBI or anxiety disorder. Thus, the 70 percent rating is more beneficial to the Veteran. In light of the foregoing, the Board finds that a rating in excess of 70 percent is not warranted. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy prior to October 27, 2015. 3. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy prior to October 27, 2015. The Veteran’s right and left lower extremity radiculopathy is currently rated at 20 percent disabling under DC 8520, effective March 13, 2006 to October 27, 2015. A July 2020 rating decision closed out the evaluation for right and left lower extremity radiculopathy under DC 8520, effective October 27, 2015, as it is the date that loss of use of the lower extremities due to service-connected disabilities was conceded. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis, or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. The Board acknowledges that the terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on the evidence of record, the Board finds that a rating in excess of 20 percent for radiculopathy of the right and left lower extremities is not warranted. At the October 2015 VA examination, the Veteran’s right and left lower radiculopathy included symptoms of moderate paresthesias and/or dysesthesias and severe numbness, but no constant or intermittent pain was noted. The examiner characterized the Veteran’s right and left lower extremity radiculopathy as moderate in severity. At the November 2019 VA examination, the Veteran reported minimal current radicular pain. The examiner noted that the Veteran’s right and left lower extremity radiculopathy included symptoms of moderate intermittent pain, moderate paresthesias and/or dysesthesias, mild numbness, but no constant pain. The examiner noted no other symptoms of radiculopathy and concluded that the Veteran’s right and lower extremity radiculopathy was mild in severity. The Board acknowledges that the Veteran has continued to report pain and functional loss and the Board finds the Veteran’s reports of the onset and continuation of his symptoms to be competent and credible. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465 (1994) (noting that a veteran is competent to report on that of which he or she has personal knowledge). However, as a preponderance of the evidence in the record shows that the Veteran’s symptoms do not rise to the level of moderately severe, the Board concludes that the evidence supports the criteria for a 20 percent rating, but no higher, for the period prior to October 27, 2015. 4. Entitlement to a rating in excess of 40 percent for right upper extremity radiculopathy. The Veteran’s service-connected right upper extremity radiculopathy is rated at 40 percent under DC 8511, effective March 13, 2006. Under Diagnostic Code 8511, which pertains to the middle radicular group, a 40 percent rating is warranted for moderate incomplete paralysis of the major extremity and a 30 percent rating for moderate incomplete paralysis of the minor extremity. A 50 percent rating is warranted for severe incomplete paralysis of the major extremity and a 40 percent rating for the minor extremity. A 70 percent rating is warranted for complete paralysis of the middle radicular group with adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected. The Veteran is right-hand dominant. Therefore, his right upper extremity is his major upper extremity. At the October 2015 VA examination, the examiner indicated that the Veteran’s right upper extremity radiculopathy exhibited symptoms of mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. However, the examiner did not indicate the severity of the Veteran’s right upper extremity radiculopathy. During the November 2019 VA back conditions examination, the examiner noted that the Veteran has moderate right radiculopathy of the middle radicular group. The Board acknowledges that the Veteran has continued to report pain and functional loss and the Board finds the Veteran’s reports of the onset and continuation of his symptoms to be competent and credible. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465 (1994) (noting that a veteran is competent to report on that of which he or she has personal knowledge). However, as a preponderance of the evidence in the record shows that the Veteran’s symptoms do not rise to the level of severe incomplete paralysis, the Board concludes that the evidence supports the criteria for a 40 percent rating, but no higher. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.