Citation Nr: 21063219 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-63 665 DATE: October 13, 2021 ORDER Entitlement to a rating of 70 percent, but no higher, for acquired psychiatric disorder to include posttraumatic stress disorder prior to January 27, 2021 is granted. Entitlement to a compensable rating for traumatic brain injury (TBI) prior to January 27, 2021 is denied. FINDINGS OF FACT 1. Prior to January 27, 2021, acquired psychiatric disorder to include posttraumatic stress disorder is manifested by anxiety, chronic sleep impairment, suicidal ideation and difficulty in adapting to stressful circumstances, all resulting in occupational and social impairment with deficiencies in most areas. 2. Prior to January 27, 2021, the Veteran's TBI was manifested by normal function in all facets. TBI residuals rated as a "1" or higher in one or more facets are not shown. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for acquired psychiatric disorder to include posttraumatic stress disorder prior to January 27, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a compensable rating for traumatic brain injury (TBI) prior to January 27, 2021 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to November 2005. A hearing was held before the undersigned veterans law judge in June 2019. The transcript is of record. During the hearing, the VLJ clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. This case was previously before the Board in January 2021, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The record establishes that the AOJ, initially, had PTSD and TBI separately rated, with the TBI rated as non-compensable. In a recent rating decision, the disorders were combined, the separate evaluations were "closed out" and a single 100 percent evaluation was assigned. The close-out rating did not result in a decrease in compensation and did not constitute a severance. Increased Rating 1. Entitlement to a rating of 70 percent, but no higher, for acquired psychiatric disorder to include posttraumatic stress disorder prior to January 27, 2021 Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4 . The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board concludes that the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. This covers the entire appeal period. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Veteran received a VA examination in August 2015. He reported having nightmares, road rage, and anxiety around people. He denied any history of suicidal ideation. The examiner noted that the Veteran was cooperative and well-oriented. His speech was clear and coherent with no evidence of a thought disorder. In a lay statement submitted in June 2015, the Veteran's mother reported that he was cold, reclusive and angry and suffered from anxiety attacks and nightmares. At his hearing, the Veteran testified that he had social anxiety, short temper, nightmares and trouble sleeping. He reported road rage that led to him getting into confrontations with other drivers on multiple occasions. He also stated that prior to being hired by his brother-in-law, he had difficulty keeping jobs. Treatment records during this period indicate that the Veteran reported anxiety, nightmares, and "instant rage" which led to altercations with strangers. Records also noted multiple instances of passive suicidal ideation, though the Veteran indicated he had no plan or intent. A January 2015 treatment note stated that the Veteran often comes across as functioning better than he really is. The Veteran's reported difficulties keeping a job are noted often in mental health treatment records. The Board finds the level of impairment caused by the Veteran's symptoms most closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with deficiencies in most areas. Mental status examinations in VA and private treatment records August 2015 VA examination indicate that the Veteran had depression, anxiety, flattened affect, and disturbances of motivation and mood. Treatment records consistently noted passive suicidal ideation. Although he reported okay relationships with his girlfriend, now wife, he also reported avoiding most people. He indicated on multiple occasions that he often experienced road rage and would get into altercations with other drivers. Prior to being hired by his brother-in-law, the Veteran had difficulty keeping a job. These factors all indicate that for the period prior to January 27, 2021 the Veteran exhibited occupational and social impairment with deficiencies in most areas. To warrant a 100 percent rating for this period, there would need to be total occupational and social impairment. That is not shown here. While the Veteran expressed passive suicidal ideation, he consistently denied any intent or plan. He reported okay relationships with his wife and family and has been able to maintain his most recent job. Therefore, a 70 percent rating, but no higher, is granted for posttraumatic stress disorder for the period prior to January 27, 2021. (The entire period of appeal.) 2. Entitlement to a compensable rating for traumatic brain injury (TBI) prior to January 27, 2021 Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. For residuals not listed in the Diagnostic Code that are reported on examination, they are to be evaluated under the most appropriate diagnostic code. 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 a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a 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. 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." 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 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. Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled 'Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified' contains 10 important facets of a 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, and 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. The Veteran has reported headaches and light sensitivity, all of which he is competent to report. The Veteran was provided with a VA examination for his TBI in September 2015. The examiner noted the Veteran's subjective symptoms of headaches, which he reported were associated with light exposure. Upon examination the Veteran's memory, judgment, visual spatial orientation, and motor activity were normal, he exhibited normal consciousness, and his ability to communicate and comprehend spoken and written language was normal. Social interaction was routinely appropriate, and he was always fully oriented. There were no neurobehavioral effects. Although the Veteran has reported headaches and memory impairment, the examiner indicated it was a subjective symptom which did not interfere with his life or work. This corresponds to a "0" level of impairment. All other facets were normal upon examination. In summary, the Board finds that a preponderance of the evidence is against a finding that the Veteran's TBI warrants a compensable rating prior to January 27, 2021. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application and a compensable rating is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.