Citation Nr: 21001836 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-26 488 DATE: January 12, 2021 ORDER Entitlement to a disability rating greater than 10 percent for a cervical spine disability is denied. Entitlement to a disability rating greater than 10 percent for a traumatic brain injury (TBI) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran’s service-connected cervical spine disability is manifested by, at worst, complaints of neck pain and forward flexion of the cervical spine to 40 degrees with repeated use over time due to pain. 2. The record evidence shows that the Veteran’s service-connected TBI is manifested by, at worst, a complaint of mild memory loss which is rated as a “1” under the memory facet for evaluating TBI residuals. 3. The record evidence shows that service connection currently is in effect for a cervical spine disability and for a TBI, each evaluated as 10 percent disabling effective September 16, 2003, and for migraine headaches, evaluated as zero percent disabling effective December 14, 2019; the Veteran’s combined disability evaluation for compensation is 20 percent effective September 16, 2003. 4. The record evidence does not show that the Veteran’s service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2019). 2. The criteria for entitlement to a disability rating greater than 10 percent for a TBI have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8045 (2019). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2000 to September 2003. A Travel Board hearing was held in October 2018 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Veteran revoked his former power of attorney later in October 2018 and currently is unrepresented before VA. In February 2019, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ obtain updated examinations for the Veteran’s service-connected cervical spine disability and TBI. These examinations occurred in December 2019. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In an October 2020 rating decision, the AOJ granted service connection for migraine headaches, assigning a zero percent rating effective December 14, 2019. The AOJ also added a claim of entitlement to an initial compensable rating for migraine headaches to an October 2020 supplemental statement of the case (SSOC) which addressed the currently appealed claims. Because the time for initiating an appeal of the October 2020 rating decision has not yet expired, an issue with respect to an initial compensable rating for migraine headaches is not in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). In other words, this issue should not have been added to the October 2020 SSOC by the AOJ. The Board apologizes for any confusion created by the AOJ’s error in adding an initial compensable rating claim for migraine headaches to the October 2020 SSOC, and the Veteran is advised that the time has not expired for him to appeal that decision. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. Increased Rating 1. Entitlement to a disability rating greater than 10 percent for a cervical spine disability The Board finds that the preponderance of the evidence is against granting the claim of entitlement to a disability rating greater than 10 percent for a cervical spine disability. Despite the Veteran’s assertions to the contrary, the record evidence shows that this disability is manifested by, at worst, complaints of neck pain and forward flexion of the cervical spine to 40 degrees with repeated use over time due to pain. For example, on VA spine examination in June 2012, the Veteran’s complaints included constant “achy to sharp pain in the cervical region.” He experienced flare-ups which limited all physical activities. Range of motion testing of the cervical spine showed forward flexion to 45 degrees or greater with evidence of painful motion beginning at 30 degrees with no additional limitation of motion on repetitive testing. The Veteran experienced functional loss or functional impairment due to weakened movement and pain on movement. Physical examination of the cervical spine showed tenderness to palpation, guarding or muscle spasm not resulting in an abnormal gait or spinal contour, 5/5 muscle strength, and normal reflexes and sensation. X-rays showed no arthritis. The diagnosis was cervical strain. The Veteran’s post-service VA outpatient treatment records show ongoing complaints of and treatment for his service-connected cervical spine disability. On VA neck (cervical spine) conditions Disability Benefits Questionnaire (DBQ) in December 2019, the Veteran’s complaints included worsening neck pain. He reported being involved in 2 motor vehicle accidents. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. His pain was located in the back of his neck which radiated into his mid- to upper back. He experienced flare-ups of neck pain which caused him to “just freeze up.” He denied experiencing any functional loss or functional impairment. Range of motion testing of the cervical spine showed forward flexion to 45 degrees, “difficulty looking to the right,” with pain causing functional loss and no additional limitation of motion on repetitive testing. The VA examiner stated that repetitive use of the cervical spine over time resulted in forward flexion to 40 degrees due to pain. Physical examination of the cervical spine showed moderate tenderness to palpation in the right upper trapezius, no pain with weight bearing, 5/5 muscle strength, and normal reflexes and sensation. X rays showed no arthritis. There was limited right rotation of the cervical spine. There was no objective evidence of pain in non-weight bearing. Passive range of motion was the same as active range of motion. The diagnosis was cervical strain. Contrary to the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that his service-connected cervical spine disability is manifested by, at worst, complaints of neck pain and forward flexion of the cervical spine to 40 degrees with repeated use over time due to pain. VA examinations conducted in June 2012 and in December 2019 showed a slightly limited range of motion in the Veteran’s cervical spine on forward flexion. These consistent physical examination findings support the 10 percent rating currently assigned for the service-connected cervical spine disability under DC 5237. See 38 C.F.R. § 4.71a, DC 5237 (2019). The Board recognizes that there was evidence of painful motion beginning at 30 degrees at the June 2012 VA examination. This finding also supports a 10 percent rating under DC 5237. Id. There is no indication that the range of motion of the Veteran’s cervical spine was less than 30 degrees at any time during the appeal period as is required for a disability rating greater than 10 percent under DC 5237. There was no additional limitation of motion on repetitive testing noted at either the June 2012 or the December 2019 VA examinations. Id. Although guarding or muscle spasm was present at the June 2012 examination, it did not result in an abnormal gait or spinal contour. And there was no guarding or muscle spasm present on subsequent VA examination in December 2019. Ankylosis of the cervical spine or the entire spine (whether favorable or unfavorable) also was not present at either of these VA examinations. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent for his service-connected cervical spine disability. Thus, the Board finds that the criteria for a disability rating greater than 10 percent for a cervical spine disability have not been met. 2. Entitlement to a disability rating greater than 10 percent for a TBI The Board finally finds that the preponderance of the evidence is against granting the claim of entitlement to a disability rating greater than 10 percent for a TBI. Contrary to the Veteran’s lay assertions and Board hearing testimony, the record evidence shows that his service-connected TBI is manifested by, at worst, a complaint of mild memory loss which is rated as a “1” under the memory facet for evaluating TBI residuals. This supports the assignment of the current 10 percent rating for the service-connected TBI under DC 8045. See 38 C.F.R. § 4.124a, DC 8045 (2019). For example, on VA TBI DBQ in June 2012, a history of an in-service motor vehicle accident with a loss of consciousness for 0-30 minutes in 2001 was noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported that his TBI residuals were headaches with dizziness on occasion, fatigue, malaise, blurred vision, and hypersensitivity to light and sound, “some sleep problems,” neck and back pain, and “some paresthesias in his palms.” His TBI symptoms had stabilized since his motor vehicle accident. Physical examination showed 5/5 motor strength, normal muscle tone, reflexes, sensation, and gait, negative cerebellar signs, normal finger-to-nose test, mildly dilated pupils which were equal, round, and reactive to light and accommodation, intact cognitive functioning, and normal vision and hearing. There were no complaints of memory loss. Judgment was normal. Social interaction was routinely appropriate. Full orientation was present. Motor activity and visual spatial orientation were normal. There were 3 or more subjective symptoms which mildly interfered with work, instrumental activities of daily living, or work, family, or other close relationships. There also were 1 or more neurobehavioral effects that do not interfere with workplace or social interaction. The Veteran had an ability to communicate by spoken and written language and to comprehend the same. And consciousness was normal. The VA examiner concluded that the Veteran’s in-service TBI had been mild in severity and his present functional impairment from residuals of this TBI was mild due to headaches. The Veteran’s post-service VA outpatient treatment records show ongoing complaints of and treatment for TBI residuals (headaches). On VA TBI DBQ in December 2019, the Veteran’s complaints included problems with prolonged concentration and headaches. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. There was a complaint of mild memory loss due to problems with short-term memory and concentration. Judgment was normal. Social interaction was routinely appropriate. Full orientation was present. Motor activity was normal. Visual spatial orientation was normal. There were no subjective symptoms or no neurobehavioral effects present. The Veteran was able to communicate by spoken and written word and to comprehend the same. Consciousness was normal. His TBI residuals were headaches. The diagnosis was TBI. Despite the Veteran’s lay assertions and hearing testimony to the contrary, the record evidence shows instead that his service-connected TBI is manifested by, at worst, a complaint of mild memory loss throughout the appeal period. This complaint is rated as a “1” under the memory facet for evaluating TBI residuals and supports the 10 percent rating currently assigned for the service-connected TBI under DC 8045. Id. None of the other facets of cognitive impairment and other residuals of the service-connected TBI support a higher rating for this disability. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent for his service-connected TBI. Thus, the Board finds that the criteria for a disability rating greater than 10 percent for a TBI have not been met. 3. Entitlement to a TDIU The Board finally finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to a TDIU. The Veteran essentially contends that his service-connected disabilities, alone or in combination, preclude his employability and entitle him to a TDIU. The record evidence does not support his assertions regarding the impact of his service-connected disabilities on his employability. The Board notes initially that service connection currently is in effect for a cervical spine disability and for a TBI, each evaluated as 10 percent disabling effective September 16, 2003, and for migraine headaches, evaluated as zero percent disabling effective December 14, 2019. The Board again notes that it denied the Veteran’s increased rating claims for a cervical spine disability and for a TBI (as discussed above). The Veteran’s combined disability evaluation for compensation is 20 percent effective September 16, 2003; thus, he does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2019). The record evidence also does not show that the Veteran’s service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation. For example, on VA spine examination in June 2012, the Veteran reported that he was self-employed doing odd jobs. The VA examiner concluded that the Veteran’s service-connected cervical spine disability had no functional impact on his ability to work. The Veteran reported on a July 2013 VA Form 21-8940 (formal TDIU claim) that his service-connected cervical spine disability and service-connected TBI prevented him from securing or following a substantially gainful occupation. He last had worked full-time in July 2009 when his disability affected his full-time employment and he became too disabled to work. He had left his last job in July 2009 because of his disability and had tried to obtain work since he became too disabled to work. The Veteran reported on a December 2019 VA Form 21-8940 that his service-connected cervical spine disability and service-connected TBI prevented him from securing or following a substantially gainful occupation. His disability affected his full-time employment in September 2003. He last had worked full-time in May 2005. He became too disabled to work in December 2007. He reported working for Lowe’s as a loader from March to November 2009 and for Anlance Protection as a security guard from October 2003 to March 2005. He had tried to obtain employment with a private lawn care company in July 2012 since he became too disabled to work. He stated that his medical history “always seem[s] to be the issue with pay raises or gaining decent employment. I’ve not had a real job since [being] discharged from the service over this.” On VA headaches DBQ in December 2019, the VA examiner concluded that the Veteran’s service-connected migraine headaches impacted his ability to work. This examiner stated, “[The] Veteran has to take frequent breaks from activities due to headache pain. Headache pain is distracting and interferes with cognitive function.” On VA TBI DBQ in December 2019, the VA examiner concluded that the Veteran’s service-connected TBI had no functional impact on his ability to work. The December 2019 VA neck (cervical spine) conditions DBQ examiner concluded that the Veteran’s service-connected cervical spine disability impacted his ability to work due to limited right rotation of the cervical spine. In response to a request from VA for information regarding the circumstances of the Veteran’s employment, Anlance Protection notified the AOJ in September 2020 that he had been employed in security from December 2004 to April 2005. There were no personnel files for the Veteran because they had not been retained beyond a normal file retention period. (The Board notes parenthetically that VA contacted Lowe’s for information regarding the Veteran’s employment but this company did not respond.) The Board recognizes that the Veteran reported having difficulty obtaining “decent employment” since his separation from service (as he reported in the December 2019 VA Form 21-8940). Despite his lay assertions and Board hearing testimony to the contrary, the record evidence does not support finding that his service-connected disabilities, alone or in combination, precluded him from securing or maintaining a substantially gainful occupation. His post-service employment history is not a model of clarity because he has not reported consistently when he last was able to work or became too disabled to work as a result of his service-connected disabilities. Nevertheless, it is undisputed that he does not meet the schedular criteria for a TDIU. Id. The record evidence shows that his service-connected TBI has no functional impact on his ability to work (as the VA examiner concluded in December 2019). The Board recognizes that the Veteran’s service-connected migraine headaches require him to take “frequent breaks from activities due to headache pain” (as the VA examiner noted in December 2019). Although he also reported that his headache pain was “distracting and interferes with cognitive function” on VA headaches DBQ in December 2019, a different VA clinician found no problems with the Veteran’s cognition, including as due to headaches, on VA TBI DBQ that same month in December 2019. Taken together, the record evidence does not show that the Veteran’s service-connected disabilities, alone or in combination, preclude his employability and entitle him to a TDIU. The Veteran finally has not identified or submitted any evidence demonstrating entitlement to a TDIU. In summary, the Board finds that the criteria for a TDIU have not been met. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.