Citation Nr: 21065619 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-11 951 DATE: October 26, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) is denied. FINDING OF FACT The TBI has not resulted in higher than level 1 impairment in any facet for rating TBI. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1988 to August 1995. On August 6, 2021, the Board sent the Veteran a hearing clarification letter, informing the Veteran that if no response was received within 30 days, it would be assumed that no hearing was wanted. No response has been received. Thus, the Board will proceed with adjudication of the matter. The Veteran's TBI is rated under 38 C.F.R. § 4.124a Diagnostic Code 8045 (2018). Diagnostic Code 8045 provides that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 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 a 5th level, the highest level of impairment, labeled "total." A 100 percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation assigned is 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 evaluation is assigned if 3 is the highest level of evaluation for any facet. 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, more than one evaluation based on the same manifestations cannot be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, separate evaluations are assigned for each condition. See 38 C.F.R. § 4.124a Diagnostic Code 8045, Note (1). The record includes VA "traumatic brain injury" examinations dated in June 2010, August 2014, July 2015, b 2016, and December 2019. The Board notes that the October 2016 VA examination was performed by an "internal medicine" physician. The examination was not the initial diagnostic examination, however, and the examiner also performed the VA neurology examination, though it is not explicit whether the internist had completed the TBI training module. The record includes a subsequent VA examination by an explicitly qualified examiner so the Board finds any error is harmless. The Board finds the Veteran's service-connected TBI does not warrant a rating in excess of 10 percent under Diagnostic Code 8045. The evidence does not show that the Veteran warrants a level 2 or higher for any of the facets for rating TBI, as required for a higher rating. Each examination record reveals findings corresponding to at highest a level 1 impairment in any facet for rating TBI, including the December 2019 VA examination that contemplated the reported irritability, aggressive mood, and inflexibility. The Board notes that the Board in its October 2019 decision determined there were discrepancies between the Veteran's histories regarding social impairment and the examiners' findings. The reported depressed mood has been attributed to a distinct psychiatric disorder, and the record indicates that the examiners reviewed the histories when they reviewed the record. Moreover, the June 2010 and December 2019 VA examination records explicitly note the histories of irritability and impulsivity. In light of the evidence of multiple stressors and disorders affecting the Veteran, and the April 2015 VA psychologist's determination that the Veteran "appeared capable of functioning at a relatively high level when it suits his needs," the Board finds the examiners findings retain probative value. Accordingly, in the absence of probative evidence that the TBI has resulted in impairment more nearly approximating a level 2 or higher for any facet, a higher rating is not warranted. The Board further finds a separate rating is not warranted during this period. The record indicates that service connection was separately awarded for posttraumatic headaches, and the record is absent probative evidence of another disorder that is secondary to the TBI. Notably, the December 2019 VA examiner determined the Veteran's psychiatric disorder was not secondary to the TBI and the record is absent any probative findings linking the reported dizziness to the TBI. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.