Citation Nr: 21064800 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 13-36 292 DATE: October 21, 2021 ORDER Entitlement to a 40 percent rating for residuals of a traumatic brain injury (TBI) but no higher, is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's TBI residuals were manifested by, at worst, a level "2" in the facet of subjective symptoms. CONCLUSION OF LAW The criteria for a 40 percent rating for service-connected residuals of a TBI, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from February 2003 to January 2004, and then again from June 2004 to September 2005. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision. In a May 2017 decision, the Board granted a 10 percent rating for a TBI with post concussive headache residuals. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2018 memorandum decision, the Court vacated and remanded the Board's May 2017 decision. In June 2021, the Board again remanded the instant matter to obtain updated VA treatment records and to afford the Veteran with a VA examination to determine the current nature and severity of his TBI. Updated VA treatment records are located in the claims file and a June 2021 letter requested that VA complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. A VA TBI examination was conducted in August 2021. The Board therefore determines that there has been substantial compliance with its previous remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to jurisdiction, the Board notes in passing that the RO granted service connection for post-concussive migraine/headaches in an April 2020 rating decision. While the Board notes that such disability could be interpreted as being part and parcel of areas of dysfunction contemplated by the Diagnostic Code for residuals of TBI, the Board cannot take jurisdiction of this claim. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. To this end, the Board notes that in May 2020, the Veteran submitted a decision review request of the April 2020 rating decision selecting a higher-level review for an earlier effective date under the Appeals Modernization Act (AMA) system. The Board finds that the procedural posture of this claim under the AMA does not allow it to take jurisdiction of a claim out of the AMA framework and back into the Legacy system. See 38 C.F.R. § 19.2(d) (eff. Feb. 19, 2019); 38 C.F.R. § 3.2400. As such, the Board finds that it lacks jurisdiction over the appeal related to service-connected post-concussive headaches. The Board further notes that in some instances of claims for increased ratings, a claim for total disability due to individual unemployability based upon service-connected disorders (TDIU) can be inferred as part and parcel of the claim for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As will be discussed below, the evidence of record confirms that the Veteran is a gainfully employed employee of the United States federal government, for which he works at home and subject to a flexible schedule that accommodates his TBI residuals. For this reason, the Board concludes that Rice is not for application in the Veteran's case. 1. Entitlement to a 40 percent rating for residuals of a TBI is granted. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As referenced above, the Veteran appealed with respect to a compensable rating for TBI, previously rated as noncompensable until prior to May 27, 2014 and 10 percent thereafter. The Board asserts jurisdiction over the claim effective July 10, 2013 only. 38 C.F.R. § 4.124a, Diagnostic Code 8045. To the extent that the Veteran is also service-connected for PTSD, post-concussive headaches, and vertigo, the Board concludes that the August 15, 2021 examiner adequately differentiated symptoms in this case, to be discussed herein. See Mittleider v. West, 11 Vet. App. 181 (1998). Diagnostic Code 8045 states that 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 TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include 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. In the instant case, the Veteran has not been assigned a separate rating for any disorder related to TBI. 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. 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 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." 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 rating is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage rating is assigned 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, a 70 percent rating is assigned if 3 is the highest level of evaluation for any facet. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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. Note (5): A veteran whose residuals of a TBI are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board notes that to the extent that previous examinations were rendered prior to June 2021, they were all deemed inadequate or incomplete for rating purposes, thereby requiring remands. The most recent VA examination of record as pertaining to residuals of the Veteran's service-connected TBI was administered on August 15, 2021. See VA Exam ( Aug. 15, 2021 ). Based on the results therein, the Board resolves all reasonable doubt in the Veteran's favor and concludes that a 40 percent rating is warranted throughout the appellate period, but no higher. The only facet on that August 2021 that was assessed as equating to "level 2" is "Subjective Symptoms." See id. at Section II, Question No. 7, Page 4. Here, the examiner indicated that the Veteran's TBI manifests in "three or more subjective symptoms that mildly interfere with work," namely frequent headaches, dizziness, photophobia, and sonophobia. To the extent that the Board may not have jurisdiction to adjudicate the Veteran's service-connected headaches, see contra, e.g.: SSOC (Aug. 25, 2021), the Board concludes that there are still three remaining subjective symptoms, thereby still evincing entitlement to the higher rating. Similarly, the Board further concludes that his having to work from home in a dark environment constitutes, at the very least, mild interference with work, instrumental activities of daily living, or work, family, or other close relationships. Meanwhile, the Board has considered the evidence of record as to this facet, and concludes that even if the Board could consider residuals of headaches (which, as previously stated, is only under the jurisdiction of the Appeals Modernization Act) as pertaining to the Veteran's TBI, the Veteran's full-time employment (made possible with a work-from-home arrangement in a dark setting, and saving him from having to take 20 sick days per year) does not appear to constitute moderate interference with workonly mild at worst. Furthermore, any higher rating under this facet would constitute a total rating, which appears to be contraindicated on its face because the Veteran is able to maintain full-time employment as a United States federal government employee. In addition, the Veteran's complaint of mild memory loss, attention, concentration, or executive function (but without objective evidence on testing) equates to a "level 1" facet, see VA Exam (Aug. 15, 2021), at Section II, Question No. 1, Pages 2-3. All other facets are indicated as "normal," or "level 0." See generally id. at Section II et seq. The highest rated facet, as indicated above, is "Subjective Symptoms," Facet No. 7 of 10. See id., supra. In assessing the severity of his TBI, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board notes the contentions of the Veteran that his TBI is more severe than currently shown on examination; and the Board observes that the Veteran, while competent to report his observable symptoms, he is not competent to report that his symptoms are of sufficient severity to warrant a higher rating under VA's tables for rating such disabilities because such an opinion requires medical expertise which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). Despite the foregoing, the Board acknowledges the Veteran's reports of additional TBI symptoms, to include visual disturbances, tinnitus, and dizziness. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a higher rating are not met. See Lendenmann, supra. The Rating Schedule contemplates such impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10; see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This argument is therefore without merit. The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Alternatively, all examinations prior to June 2021 have forced the Board to remand the claim, so by assigning a rating commensurate with the most recent VA examination throughout the period on appeal, the Board is resolving reasonable doubt in the Veteran's favor by ensuring that he is not insufficiently compensated for his disability. Therefore, assigning staged ratings is not warranted. The Veteran and/or his representative has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). (Continued on the next page) Accordingly, the Board resolves all reasonable doubt to assign a 40 percent rating for TBI, but no higher. There is no further doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate 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.