Citation Nr: 21003659 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-08 585 DATE: January 22, 2021 ORDER Entitlement to an initial compensable rating for service-connected traumatic brain injury (TBI) is denied. An effective date of March 22, 2013, but not earlier, for basic eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s service-connected traumatic brain injury (TBI) residuals have been manifested by no greater than level zero impairment of any cognitive function. 2. The Veteran had a permanent and total service-connected disability, effective March 22, 2013, when he was awarded a total disability rating based on individual unemployability (TDIU). CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for service-connected residuals of a traumatic brain injury (TBI) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8045. 2. The criteria for an effective date of March 22, 2013, but not earlier, for basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 have been met. 38 U.S.C. §§ 3500, 3501, 3510, 5107, 5110; 38 C.F.R. §§ 3.400, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 2003 to August 2006. He was afforded a hearing before the undersigned in January 2020. A transcript of that hearing is of record. A January 2020 Board decision remanded the issues on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). An October 2020 rating decision granted eligibility to DEA benefits effective October 6, 2020. With regard to the appeal for an earlier effective date for DEA benefits, the Board finds that additional notice addressing such appeals are not necessary. Effective date claims are generally considered to be “downstream” issues from the original grant of service connection if appealed from that initial grant of service connection. VA’s General Counsel has promulgated an advisory opinion holding that separate notice of the VA’s duty to assist the veteran and of his concomitant responsibilities in the development of claims involving such downstream issues is not required when the veteran was provided adequate notice following receipt of the original claim. As the Veteran, through his representative, has objected to the effective date of the grant of DEA benefits in his December 2020 appellate brief, the Board finds the issue is properly before it and will adjudicate the issue herein. 1. Entitlement to an initial compensable rating for service-connected traumatic brain injury (TBI). The Veteran asserts that his service-connected TBI is more severe than his initial rating reflects. He is currently rated for TBI under Diagnostic Code 8045. Residuals of traumatic brain injury are evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. Traumatic brain injury residuals are rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction 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 dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. In this case, in accordance with Diagnostic Code 8045, the Veteran has already been rated for PTSD under Diagnostic Code 9411. Diagnostic Code 8045 is complex and comprehensive and gives much instruction to the rater, as follows: 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. Evaluate cognitive impairment 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. Evaluate subjective symptoms that are residuals of TBI, 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 TBI Not Otherwise Classified.” However, 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 TBI Not Otherwise Classified” table. The rater is to evaluate emotional/behavioral dysfunction 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.” The rater 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 TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under §4.25 the evaluations for each separately rated condition. 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. 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. Evaluation of Cognitive Impairment and Subjective Symptoms requires consideration of the table “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” which 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. 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. For the facet memory, attention, concentration, executive functions, a “0” level of impairment is assigned with no complaints of impairment. A “1” level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A “2” level is assigned with objective evidence on testing of mild impairment. A “3” level is assigned with objective evidence on testing of moderate impairment. A “total” level is assigned with objective evidence on testing of severe impairment. For the facet judgment, a “0” level of impairment is assigned for normal judgment. A “1” level is assigned with 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. A “2” level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. A “3” level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A “total” level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities. For the facet social interaction, a “0” level of impairment is assigned when social interaction is routinely appropriate. A “1” level is assigned when social interaction is occasionally inappropriate. A “2” level is assigned when social interaction is frequently inappropriate. A “3” level of impairment is assigned when social interaction is inappropriate most or all of the time. For the facet orientation, a “0” level of impairment is assigned when always oriented to person, time, place and situation. A “1” level is assigned when occasionally disoriented to one of the four aspects of orientation. A “2” level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A “3” level is assigned when often disoriented to two or more of the four aspects of orientation. A “total” level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the facet motor activity, (with intact motor and sensory system) a “0” level of impairment is assigned for normal motor activity. A “1” level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A “2” level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A “3” level is assigned for motor activity moderately decreased due to apraxia. A “total” level is assigned for motor activity severely decreased due to apraxia. For the facet visual spatial orientation, a “0” level of impairment is assigned when normal. A “1” level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as GPS (global positioning system). A “2” level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS. A “3” level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A “total” level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. For the facet subjective symptoms, a “0” level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A “1” level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). A “2” level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days). For the facet neurobehavioral effects, a “0” level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A “1” level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A “2” level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A “3” level is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. For the facet communication, a “0” level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A “1” level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A “2” level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A “3” level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A “total” level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs. For the facet consciousness, a “total” level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. The following notes apply to Diagnostic Code 8045. See Notes (1)-(4), 38 C.F.R. § 4.124a, Diagnostic Code 8045. Note (1): 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): 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” 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. Before turning to the evidence, the Board notes that the Veteran is in receipt of a 70 percent disability rating for posttraumatic stress disorder (PTSD) for the entirety of the appeal period. This 70 percent rating was based on symptoms of depression, anxiety, sleep difficulties, disturbance of mood, relationship issues, impaired impulse control, irritability, mild memory loss, and panic attacks. As such, in evaluating the current claim for a compensable initial rating for TBI, evaluation of the same manifestations of his service-connected PTSD under a different diagnosis is to be avoided. 38 C.F.R. § 4.14. To do so is to pyramid the ratings. Accordingly, these identified symptoms, particularly to the extent that pertain to memory loss, may not be used to support an evaluation for his service-connected TBI. The Veteran was afforded a VA examination in June 2012 for his now service-connected PTSD. The examiner found at that time there was no diagnosis of a TBI. A June 2015 VA examination report noted the Veteran’s complaints of irritability, trouble sleeping, and anxiousness. The examiner noted no complaints of impairment of memory attention, concentration or executive functions. The Veteran’s judgment was normal, social interaction was routinely appropriate, and he was always oriented to person, time, place, and situation. His motor activity and visual special orientation was normal. His subjective symptoms did not interfere with work instrumental activities or daily living or work, family, or other close relationships. He exhibited one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction. He was able to communicate by spoken and written language and to comprehend spoken and written language. His consciousness was normal. The examiner noted the Veteran’s performance on the examination was significantly below scores of groups of individuals with well documented severe cognitive limitations. A February 2020 VA examination report reflects complaints of insomnia, irritability, isolation, and anxiousness. The examiner noted a complaint of mild memory loss, attention, concentration, or executive function without objective testing. The Veteran’s judgment was normal, social interaction was routinely appropriate, and he was always oriented to person, time, place, and situation. His motor activity and visual special orientation was normal. He had three or more subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family, or other close relationships. He was able to communicate by spoken and written language and to comprehend spoken and written language. His consciousness was normal. Under Diagnostic Code 8045, a compensable evaluation would require at least a “1” to be assigned as the highest level of any one facet or a “total” evaluation to be assigned for one or more facets. As will be detailed below, the highest level severity for any facet during the appeal is “0” under the criteria; therefore, an initial compensable rating under Diagnostic Code 8045 is not warranted. To facilitate understanding, the Board will go through each of the 10 facts of cognitive impairment and other residuals of TBI not otherwise classified. At the June 2015 VA examination, the Veteran had no complaints of impaired memory. At the February 2020 VA examination, the Veteran complained of mild memory loss; however, the examiner noted the Veteran performed in the average range overall with attention/concentration and memory. Indeed, no VA examination report of record reflects that the Veteran displayed objective evidence on testing of any kind of impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Board also notes that both July 2015 and June 2012 VA PTSD examination reports noted mild memory loss as symptoms associated with the Veteran’s PTSD. As the Veteran’s mild memory loss reported on the February 2020 VA examination is also evaluated in his current PTSD rating, the Board is unable to use this facet to assign a higher rating. Therefore, the Board concludes that no more than a zero can be assigned to this facet. The Veteran’s judgment throughout the appeal period has been noted to be normal. Accordingly, a zero is assigned for this facet. The Veteran’s social interaction has been documented as routinely appropriate throughout the entire period appeal. Therefore, a zero is assigned for this facet. For the entire time period, the Veteran has been shown to be always oriented to person, time, place, and situation. Therefore, a zero is assigned for this facet. The Veteran’s motor activity has been normal throughout the time period. Accordingly, a zero is assigned for this facet. The Veteran’s visual spatial orientation has been documented as normal throughout the entire time period. Therefore, a zero is assigned for this facet. Subjective symptoms include reported anxiety, insomnia, irritability, and isolation. Again, the Board notes that service connection for PTSD has been awarded separately and the symptoms associated with this condition, which have been medically examined, are not to be considered again in the Veteran’s rating for TBI. To do so would violate the law against pyramiding, which specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Accordingly, a zero is assigned for this facet. Examples of neurobehavioral effects include irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. As discussed above, the Veteran is separately rated for PTSD for the entire period on appeal. Thus, the symptoms associated with this condition, which have been medically examined, are not to be considered again in the Veteran’s rating for TBI. To do so would violate the law against pyramiding, which specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Accordingly, a zero is assigned for this facet. The Veteran’s communication ability has been documented as normal throughout the entire period on appeal. Therefore, a zero is assigned for this facet. The Veteran has remained conscious throughout the appeal. Therefore, a total rating is not assignable for this facet. The Board finds that the July 2015 and February 2020 VA examinations were thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran’s claim for an increased initial rating. The examiners considered the relevant history of the Veteran’s TBI, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a TBI facet severity of zero is the highest level assigned for the appeal period, and an initial compensable evaluation cannot be awarded for the Veteran’s residuals of his TBI, based on the totality of the evidence in this case. See 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8045. 2. Entitlement to an earlier effective date for basic eligibility to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35. The Veteran, through his representative, asserts that he is entitled to an earlier effective date for eligibility to DEA benefits. An October 2020 rating decision granted entitlement to DEA benefits effective October 6, 2020. The Veteran contends generally that he met the basic eligibility requirements for DEA benefits prior to October 6, 2020, because he had a permanent and total service-connected disability prior to that date. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In a November 2019 rating decision, the agency of original jurisdiction (AOJ) explained that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. While the AOJ granted entitlement to a TDIU effective March 22, 2013, it did not grant entitlement to DEA benefits until October 6, 2020. For the purposes of DEA benefits, basic eligibility exists if a veteran was discharged from service under conditions other than dishonorable, and if he has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021(p). There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here, e.g., the death of a veteran or if a veteran is currently on active duty. Id. The Board finds that the Veteran had a permanent and total service-connected disability, effective March 22, 2013, when he was awarded a TDIU rating. Although the Veteran was afforded a VA examination for his service-connected PTSD disability in October 2020, this disability did not permanently improve after the Veteran was granted a TDIU rating. Specifically, the October 2020 VA examination report reflects that this service-connected psychiatric disability was continuously rated as 70 percent disabling since March 22, 2013. As discussed above, the AOJ found that an effective date for the award of entitlement to a TDIU is warranted effective March 22, 2013, and no earlier. Since eligibility for DEA benefits is predicated on a finding of permanent and total disability in this case, the effective date of such eligibility cannot precede the date permanent and total disability was awarded. Accordingly, an effective date of March 22, 2013, and no earlier, for the grant of DEA benefits is granted. The law is dispositive of the issue. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.