Citation Nr: 21002528 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-12 728 DATE: January 13, 2021 ORDER 1. Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) with headaches is denied. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s TBI with headaches was manifested by symptomatology no worse than level “1” impairment for any of the relevant facets according to the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table (the level “2” impairment in cognitive, social interaction, orientation, and neurobehavioral effects noted upon examination in July 2020 is already contemplated by the assigned 100 percent disability rating for the Veteran’s PTSD with cognitive and behavior/emotional TBI residuals); additionally, the Veteran’s residual headaches have not been manifested by characteristic prostrating attacks of headache pain for any period on appeal. 2. The Veteran is in receipt of a 100 percent schedular disability rating for his service-connected PTSD with mild cannabis use disorder and including cognitive and behavior/emotional TBI residuals, effective December 16, 2010, including for the entire period on appeal, as well as additional awards of special monthly compensation (SMC) based upon the loss of use of a creative organ and his schedular 100 percent disability rating, with additional service-connected disabilities independently ratable at 60 percent or more; therefore, the claim of entitlement to a TDIU rating has been rendered moot for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for TBI with headaches have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.124a, Diagnostic Codes (DCs) 8045, 8100 (2019). 2. The criteria for a TDIU have not been met, as the claim is moot for the entire period on appeal. 38 U.S.C. §§ 1155, 5107, 7105 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1998 to October 2000, October 2001 to November 2002, May 2004 to October 2005, and November 2005 to December 2010. The Veteran testified before the undersigned Veterans Law Judge at an August 2019 videoconference hearing and a transcript of that hearing has been associated with the claims file. These matters were previously remanded by the Board in February 2020 for additional development, including relevant VA examinations. As there has been substantial compliance with prior remand directives, the matters are properly before the Board for adjudication. The Board’s February 2020 decision also remanded the Veteran’s claim of entitlement to an increased disability rating in excess of 50 percent for PTSD with mild cannabis use disorder and including cognitive and behavior/emotional TBI residuals. Significantly, an October 2020 rating decision granted an increased 100 percent disability rating for PTSD with mild cannabis use disorder and including cognitive and behavior/emotional TBI residuals, effective December 16, 2010. As this decision constitutes a full grant of benefits sought on appeal with respect to that issue, it is no longer before the Board in appellate status and need not be addressed further herein. Finally, the Board acknowledges the October 2020 submission by the Veteran’s attorney in response to the October 2020 supplemental statement of the case (SSOC), which indicated that the Veteran requested opt-in to the Modernized Decision Review System. However, the Board finds that this general request is insufficient to remove the Veteran’s appeal from the legacy system into the jurisdiction of the Appeals Modernization Act (AMA). Notably, correspondence sent to the Veteran along with the October 2020 SSOC provided clear instructions about how to properly opt in to the AMA review system, which included the submission of specific forms and an explanation that the Veteran must check the “SOC/SSOC Opt-in box on the appropriate form(s).” As neither the Veteran nor his attorney have submitted the required forms to opt into the AMA system, the Board finds that the appeal will be adjudicated under the legacy appeals system. 1. Entitlement to an initial disability rating in excess of 10 percent for TBI with headaches. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Regarding the Veteran’s initial rating claim for TBI with headaches, the Board has considered the claim from the currently assigned effective date, December 16, 2010, as well as whether any staged ratings periods are warranted. The Veteran claims that his service-connected TBI with headaches is more severe than his current 10 percent disability rating. Within his October 2013 Notice of Disagreement (NOD), the Veteran asserted that his “TBI with headaches should be [rated] significantly higher than what has been assigned” due to his “severe headaches and light sensitivity.” Similarly, his March 2016 VA Form 9 substantive appeal asserts that the “medical evidence supports a higher evaluation of TBI with headaches currently diagnosed as [10 percent] disabling.” Finally, at the August 2019 Board hearing, the Veteran testified that his TBI resulted in headaches and light sensitivity, in addition to other issues related to his service-connected PTSD. The Veteran’s service-connected TBI with headaches is currently rated as 10 percent disabling pursuant to DC 8045. 38 C.F.R. § 4.124a, DC 8045 (2019). Thereunder, the main areas of dysfunction that may result from TBI include cognitive impairment, subjective symptoms, emotional/behavioral dysfunction, and physical dysfunction. Cognitive impairment, defined as decreased memory, concentration, attention, and executive functions of the brain, is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms are evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified;” however, any residual with a distinct diagnosis that may be evaluated under another diagnostic code is to be separately evaluated. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder; however, when there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated 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 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 level 5, 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 disability rating is warranted for a total evaluation for one or more facets. If no facet is evaluated as total, an overall percentage rating based on the level of the highest facet is assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, if 3 is the highest level of evaluation for any facet, a 70 percent rating is warranted. Additionally, the Board has considered whether a separate disability rating is warranted for the Veteran’s TBI-residual headaches under DC 8100. Thereunder, a noncompensable, or 0 percent, disability rating is warranted for characteristic prostrating attacks occurring on average less frequently than one in two months over the last several months; a 10 percent disability rating is warranted for characteristic prostrating attacks averaging one in two months; a 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and a maximum schedular 50 percent disability rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Notably, the rating criteria of DC 8100 do not define “prostrating” attacks. “Prostration” is defined as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). This is consistent with medical guidance used by the VA Compensation Service that suggests that a “prostrating migraine may be described as a condition that causes lack of strength to the point of exhaustion.” See VA Compensation Service’s Medical Electronic Performance Support System (2017). However, following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 10 percent for TBI with headaches for the entire period on appeal. The reasons for this decision follow. Following his June 2011 original claim, Social Security Administration (SSA) disability records contain an August 2011 Internal Medicine Examination that documents he suffered from PTSD, which makes him sensitive to light, and also complained of chronic headaches twice a week. Within a subsequent September 2011 Disability Determination and Transmittal, the Veteran was found to be disabled for SSA purposes from May 27, 2011 due to primary anxiety related disorder/functional nonpsychotic affective disorder. The Veteran was first afforded a VA TBI examination in September 2012. At that time, the VA examiner documented that there were no complaints of impairment of memory, attention, concentration, or executive functions. Judgment was normal, social interaction was routinely appropriate, and the Veteran was always oriented to person, time, place, and situation. His motor activity and visual spatial orientation were each normal. The examiner noted that there were subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships, including mild or occasional headaches and mild anxiety. There were no neurobehavioral effects, and the Veteran retained the ability to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language, with normal consciousness. The examiner identified TBI residuals as headaches, with no other pertinent physical findings, scars, complications, conditions, signs, and/or symptoms. Additionally, there was no resulting functional impact upon the ability to work. The examiner concluded his remarks by noting that there were no current residuals of a TBI except for headaches. Additionally, within a concurrent September 2012 VA headaches examination, a VA examiner found that the Veteran did not have any characteristic prostrating attacks of migraine or non-migraine headache pain. Upon subsequent VA TBI examination in May 2013, the VA examiner noted that there was a complaint 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 documented the Veteran’s judgment was normal and social interaction was routinely appropriate. The examiner described the Veteran as always oriented to person, time, place, and situation, with normal motor activity and visual spatial orientation. There were three or more subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family, or other close relationships, including intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light, without any neurobehavioral effects. The Veteran retained the ability to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language, with normal consciousness. The only identified residuals were headaches, with no other pertinent physical findings, scars, complications, conditions, signs, and/or symptoms, and no resulting functional impact about the ability to work. The examiner concluded with remarks that the Veteran’s documented TBI had residual subjective complaints including headaches, dizziness, difficulty with concentration, and memory loss. Additionally, within a concurrent May 2013 VA headaches examination, the examiner stated that the Veteran’s migraine headaches did not result in any prostrating attacks of migraine or non-migraine headache pain. Upon subsequent November 2015 TBI examination, the Veteran stated that he believed his 10 percent disability rating was “low” regarding his headaches. He reported headaches two to three times per week, lasting 20-30 minutes, and stated that they typically begin after light exposure and were located in the posterior region and behind his eyes, and were throbbing in nature. He denied any change in frequency of the headaches since his head injury, and stated that he took Motrin for the headaches about once per week. He reported “a little bit” of nausea associated with the headaches, with worsening light sensitivity, but denied sound sensitivity, vomiting, or change in headaches over time. He noted that the headaches were worse with physical activity and that he would sit down with an ice pack on the back of his head to relieve his headache pain. Regarding the facets of TBI-related cognitive impairment and subjective symptoms of TBI, the VA examiner noted that there were no complaints of impairment of memory, attention, concentration, or executive functions. The Veteran’s judgment was normal, and his social interaction was routinely appropriate. He remained always oriented to person, time, place, and situation, with normal motor activity and visual spatial orientation. The examiner noted that there were subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships, including headaches without neurobehavioral effects. The Veteran remained able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language, with normal consciousness. The examiner stated that there were residual headaches from TBI, without any other evidence of residuals of TBI. The Veteran reported functional impact upon his ability to work, which he stated was due to his PTSD, although he noted that after his time in the service, he returned to school for two years and would miss school about twice per month due to his headaches. Additionally, within a concurrent November 2015 headaches examination, the Veteran reported symptoms of headache pain, including pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity, with non-headache symptoms associated with headaches including nausea and sensitivity to light, with typical duration of less than one day. However, the examiner stated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. As directed by the February 2020 Board remand, the Veteran was most recently afforded a VA TBI examination in July 2020. At that time, the Veteran reported that some of his TBI symptoms had progressed, with current symptoms including headaches, nausea, and light sensitivity. Upon assessment of facets of TBI-related cognitive impairment and subjective symptoms of TBI, the VA examiner documented that there was a complaint 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 Veteran displayed 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. His social interaction was noted to be frequently inappropriate, and he was occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation, which was described as he would completely forget where he is driving, and the examiner also noted that the Veteran had two recent accidents while driving. The examiner wrote the Veteran’s motor activity was normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function), and his visual spatial orientation was mildly impaired, which was described as occasionally getting lost in unfamiliar surroundings, having difficulty reading maps or following directions, (although he was able to use assistive devices such as GPS), and he had difficulty following directions. There were three or more subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family or other close relationships, including tinnitus and daily headaches. Neurobehavioral effects were identified that frequently interfere with workplace interaction, social interaction, or both but do not preclude them, which were described as the Veteran getting into an argument with a coworker about French fries. His comprehension or expression, or both, of either spoken language or written language was only occasionally impaired, and although he could communicate complex ideas, he occasionally cannot understand what someone is saying. His consciousness was noted to be normal. The examiner identified residuals attributable to a TBI, including hearing loss and/or tinnitus, erectile dysfunction, and headaches, without any other pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner concluded that the Veteran’s TBI residuals impacted his ability to work in that his headaches lead to time off from work and social interaction issues leading to difficulty dealing with co-workers and sometimes exhibiting aggressive behavior, as well as nausea and impaired concentration leading to difficulty finishing an assigned task. A concurrent July 2020 VA headaches examination documented the Veteran’s report that his headache symptoms had progressed in severity to include frequent headache pain, which he treated with Motrin. The examiner noted that the Veteran reported pulsating or throbbing head pain, pain on both sides of the head, and pain worse with physical activity, as well as non-headache symptoms associated with headaches including nausea and sensitivity to light, lasting less than one day in typical duration and located on both sides of the head. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain, and no very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. The Veteran reported functional impact upon the ability to work due to his headaches, which required him to stay home about two days per month from work. Based upon the above, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 10 percent for TBI with headaches for the entire period on appeal. The Board has considered the Veteran’s lay reports, including his October 2013 NOD, March 2016 substantive appeal, and his August 2019 hearing testimony discussed above. While such reports are probative insofar as they report observable symptomatology, the Board finds that the most probative evidence of record concerning the severity of the Veteran’s TBI with headaches throughout the appeal period is the clinical findings documented within the VA examination reports of record, which document that the Veteran’s TBI with headaches resulted in symptomatology which was no worse than level “1” impairment in any of the relevant facets. Further, the clinical findings made by various VA examiners performing the multiple examinations throughout the appeal period are essentially in agreement with respect to the relevant symptoms associated with the service-connected TBI with headaches. To the extent that the July 2020 VA TBI examination documents impaired facets of cognitive impairment and other residuals of TBI, including social interaction, orientation, and neurobehavioral effects, which are consistent with level 2 impairment that would otherwise warrant a 40 percent disability rating under DC 8045, the Board finds that such impairment does not weigh in favor of the Veteran’s claim in this instance. Significantly, the resulting impairment for the impaired facets, including cognitive, social interaction, orientation, and neurobehavioral effects, are already contemplated by the assigned 100 percent disability rating for the Veteran’s PTSD with cognitive and behavior/emotional TBI residuals. As such, the impairment for these facets cannot support a separate grant of an increased disability rating for the Veteran’s TBI with headaches, as this would violate the rule against pyramiding, which specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. Given the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s TBI with headaches has resulted in any worse than level “1” impairment for any of the relevant facets according to the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table for the entire period on appeal, and those facets which have manifested level “2” impairment cannot support an initial disability rating for TBI with headaches as they are already contemplated by a separately assigned disability rating. As such, there is no reasonable doubt to be resolved, and entitlement an initial compensable disability rating in excess of 10 percent for TBI with headaches is denied for the entire period on appeal. 2. Entitlement to a TDIU. A TDIU rating is assignable only where the schedular rating is less than total. See 38 C.F.R. § 4.16 (2019). Notably, the Veteran is already in receipt of a 100 percent schedular disability rating for his service-connected PTSD with mild cannabis use disorder and including cognitive and behavior/emotional TBI residuals, effective December 16, 2010, which is the day following service discharge and includes the entire period on appeal. As such, his claim of entitlement to a TDIU rating has been rendered moot. See 38 U.S.C. § 7105 (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). The Board has considered the holding of Bradley v. Peake, 22 Vet. App. 280 (2008) that a TDIU rating must still be considered even if a veteran has already been awarded a separate 100 percent disability rating for a disability in order to potentially make the veteran eligible for special monthly compensation (SMC); however, in this case, the Veteran is already in receipt of additional awards of SMC based upon the loss of use of a creative organ and his schedular 100 percent disability rating, with additional service-connected disabilities independently ratable at 60 percent or more. See 38 U.S.C. § 1114(k), (s) (2012); 38 C.F.R. § 3.350(a), (i) (2019). Therefore, consideration of a TDIU rating, even in light of Bradley, 22 Vet. App. 280, no longer serves any useful purpose, as the claim of entitlement to a TDIU rating has been rendered moot for the entire period on appeal. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal with respect to the claim of entitlement to a TDIU rating is moot and must be dismissed as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.