Citation Nr: 21065984 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-00 223A DATE: October 28, 2021 ORDER A 70 percent rating, but no more, for posttraumatic stress disorder (PTSD) with a traumatic brain injury (TBI) is granted, subject to the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from December 1971 to December 1974. 2. The symptoms associated with PTSD with TBI most closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 3. The symptoms associated with PTSD with TBI warrant no more than a level "2" in any facet category under Diagnostic Code (DC) 8045. CONCLUSION OF LAW The criteria for a 70 percent rating, but no more, for PTSD with TBI have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.14; 4.124a, DC 8045; 4.130, DC 9411 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION In March 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the record. As a procedural matter, in January 2021, the Regional Office (RO) granted an increased rating for PTSD with TBI and assigned a 40 percent rating, effective November 21, 2019. The RO found that an October 2020 VA examination showed that PTSD and TBI symptoms could not be differentiated, so a single rating was warranted due to the prohibition against pyramiding as set forth under 38 C.F.R. § 4.14 as assigning two separate ratings for symptoms that are "duplicative or overlapping" violates the rule against pyramiding. Esteban v. Brown, 6 Vet. App. 259, 261-62. The RO then considered whether a higher rating was warranted using the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130, DC 9411 (Psychiatric Rating Formula) or the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" under 38 C.F.R. § 4.124a, DC 8045 (TBI Rating Table). After reviewing all of the evidence, the RO determined that the evidence supported a 40 percent rating under DC 8045 or a 30 percent rating under DC 9411, and assigned the higher rating, as required by 38 C.F.R. § 4.7. On appeal, the Veteran seeks a higher rating. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. For the period on appeal prior to November 21, 2019, PTSD with TBI was rated as 30 percent disabling under DC 9411-8045 and 40 percent thereafter. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as an unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), and an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula for total occupational and social impairment due to such symptoms 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Next, TBI residuals are evaluated under DC 8045 based on three main areas of dysfunction: cognitive, emotional/behavioral, and physical. 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. VA is to evaluate cognitive impairment under the TBI Rating Table. The TBI Rating Table 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 highest level of impairment labeled "total." 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. The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of a 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 DC 8045. Note 1 associated with DC 8045 states that there may be an overlap of manifestations of conditions evaluated under the TBI Rating Table with manifestations of a comorbid mental, 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 finds that 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 states that "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. According to 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. Turning to the medical evidence, at a March 2017 VA examination, the Veteran reported depressed mood and anxiety. He was found to be alert and oriented, dressed appropriately and neatly, with good grooming and hygiene. His attention and concentration were good, and his speech was fluent and productive. Thought process was clear and coherent. He reported nightmares and flashbacks, and a higher frequency of symptoms in recent years. He also stated that he had an issue with social withdrawal. The examiner found that he had a TBI and PTSD, the symptoms of which could not be properly differentiated. While he was found to have PTSD, the examiner opined symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. At an August 2018 VA examination, the Veteran reported anxiety and depression with difficulty sleeping. He also noted having issues with memory. The examiner found that he had an atypical/deliberative sensory response in four limbs with mild pseudodementia related to anxiety and depression, but that his neurological examination was otherwise normal. Despite complaints of memory issues, the examiner found that he had no complaints of impairment of memory, concentration, attention, or executive functions. His judgment was found to be normal, and social interaction as appropriate. He was always oriented to person, place, and time. He had normal motor activity, visual spatial orientation, and no subjective symptoms or neurobehavioral effects. He was able to communicate normally, with normal consciousness, and no residuals. At a January 2019 VA examination, the Veteran complained of increased depression and anxiety, with social withdrawal increased irritability and anger, difficulty making decisions, and nighttime disturbances. He reported increased trouble in his marriage, and increased therapy and medication to help with poor attitude and anger with others. He was alert and oriented, dressed neatly and appropriately, with good grooming and hygiene. His eye contact and speech were normal, as well as his through process. He had no evidence of hallucinations, delusions, and denied any suicidal or homicidal ideations. His judgment and insight were normal. The examiner found that he had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. At a September 2020 PTSD evaluation, the examiner found that the Veteran had irritability as a neurobehavioral effect of his TBI. The examiner opined it was not possible to differentiate symptoms as many of the symptoms, including irritability, overlapped with PTSD. Specifically, the examiner noted that symptoms were not specific to either diagnosis, but common to both. The Veteran came with his wife to his examination and noted that he depended on her for daily needs. He admitted to contemplating suicide almost daily, but denied any plan or intent. He reported depression, anxiety, suspiciousness, panic attacks more than once a week, near continuous depression nor panic and chronic sleep impairment. He also endorsed feelings of impaired judgment and abstract thinking, difficulty in establishing and maintaining relationships, impaired impulse control, spatial disorientation, and neglect of personal appearance. The examiner found that he was alert and oriented, with neat and appropriate dress and grooming. There was moderate impairment in concentration and attention. His speech was fluent and productive with a clear thought process. There was no evidence of a formal thought disorder, psychosis, or hallucinations. His judgment and insight appeared average. The examiner opined that the Veteran should be considered an increased but not current imminent risk for suicide and opined that his disorders manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. At an October 2020 TBI evaluation, he was found to have complaints of mild memory loss, attention, concentration, or executive function. Specifically, the Veteran reported difficulty with short term memory. His judgment, social interaction, orientation, visual and spatial orientation, and motor activity were all found to be normal. He was able to communicate properly, and his consciousness was normal, with residuals consisting of headaches. He was found to have neurobehavioral effects which frequently interfered with workplace and social interaction but did not preclude them. Specifically, he reported symptoms of irritability, lack of motivation, verbal aggression, apathy, lack of empathy, and moodiness. He stated that he argued with his wife often and discussed divorce. He also reported that it took him longer to do household chores and experienced difficulty understanding what others are feeling. At his March 2021 Board hearing, he testified that he had increased irritability and anger with suicidal ideations. His son and wife reported that he had extreme social withdrawal and refused to complete even the most menial of tasks if it involved leaving the house. The Veteran testified that he did not partake in many activities or interact with many people other than his immediate family and grandchildren. After considering the totality of the record, to include the Veteran's private and VA treatment records mirroring similar symptomatology, his psychiatric symptoms most closely approximate the severity, frequency, and duration of symptoms warranting a 70 percent rating under the Psychiatric Rating Formula. The principal symptoms were depression, anxiety, suicidal ideation, memory issues, trouble concentrating, social withdrawal and chronic sleep impairment, all of which are contemplated by a 70 percent rating under 38 C.F.R. § 4.130. By contrast, he was not found to have symptoms warranting a 100 percent rating 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Instead, he was consistently found by examiners to properly communicate, hold eye contact, denied any hallucinations or delusions, and to maintain proper hygiene. He was always oriented to person, place, and time, and did not forget basic facts about himself or his close family. He was consistently found capable of managing his own finances, and successfully participated in several VA examinations cooperatively, as well as his Board hearing. While he did report frequent suicidal ideation, he was not found to be a persistent danger by the VA examiners. Thus, a 70 percent rating, but not 100 percent, is warranted for PTSD. With regard to his TBI, the Board has fully reviewed the Veteran's VA treatment records and they do not contain findings worse than those documented in the VA TBI examinations of record. They do not show a level of impairment greater than 2 in any if the facets during the appellate period as would be required to warrant a rating higher than 40 percent. The totality of the evidence, including the Veteran's VA treatment records, VA examinations, and the lay statements of record, do not show a level of severity beyond a 40 percent rating for TBI under DC 8045. As the Veteran is already receiving a higher 70 percent rating under 38 C.F.R. § 4.130, it is more appropriate to rate PTSD with TBI under the Psychiatric Rating Formula. In granting a higher rating, the Board has considered the Veteran's lay statements regarding his symptoms as well as the evidence provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In sum, after a careful review of the evidence of record, a 70 percent rating, but no more, for PTSD with TBI is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.