Citation Nr: 21066447 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-55 778 DATE: November 1, 2021 ORDER Service connection for a lumbar spine disorder is denied. Entitlement to a higher initial rating in excess of 30 percent for the service-connected headache from July 2, 2012 is denied. Entitlement to a higher initial rating in excess of 70 percent for the service-connected traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran has a current disability of degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). 2. The Veteran experienced an in-service motor vehicle accident in September 1986. 3. Symptoms of the lumbar spine disorder were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 4. The lumbar spine disability did not have its onset in service and is not otherwise etiologically related to service. 5. From July 2, 2012, the service-connected headache disability manifested in in characteristic prostrating attacks occurring on an average once a month over last several months, without evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 6. From July 2, 2012, the service-connected TBI disability manifested by the following symptoms with level of impairment for each facet in parentheticals: mild memory loss (2), normal judgment (0), social interaction is inappropriate most or all of the time with the Veteran reporting that he has had significant difficulties with social interactions in that he has made inappropriate remarks in social settings many time (3), orientation to person, time, place, and situation always (0), normal motor activity (0), moderately impaired visual spatial orientation because the Veteran often got lost in unfamiliar surroundings and has difficulty interpreting maps (2), and subjective symptoms of headaches, light sensitivity, and sound sensitivity that mildly interfere with work and activities of daily living (0), one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them with the Veteran reporting substantial changes in his personality and behavior (2), normal communication (0), and normal consciousness (0). CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. For the entire rating period on appeal from July 2, 2012, the criteria for a higher initial disability rating in excess of 30 percent for the service-connected headache disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. 3. For the entire rating period on appeal from July 2, 2012, the criteria for a higher initial disability rating in excess of 70 percent for the service-connected TBI disability have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1985 to August 1987. This matter is on appeal from a July 2013 rating decision issued by the Regional Office (RO). This case involved a long procedural history which the Board will abbreviate for the purpose of brevity. In a February 2017 rating decision, the RO granted service connection for TBI, rated at 70 percent from November 22, 2016, and granted service connection for headaches, rated at 30 percent from November 22, 2016. In November 2018, the Board remanded the issue of service connection for a low back disability. The Board remanded in order to request records from the U.S. Social Security Administration (SSA). All three matters were brought before the Board in July 2020. The Board granted entitlement to an earlier effective date of July 2, 2012 for the award of service connection for the headache disability and granted entitlement to an earlier effective date of July 2, 2012 for the award of service connection for the TBI disability. The Board remanded the issue of service connection for a low back disorder in order to obtain a VA examination. In an August 2021 supplemental statement of the case, the RO denied service connection for a low back disability, entitlement to a higher initial rating for the headache disability in excess of 30 percent from July 2, 2012, and entitlement to a higher initial rating for the TBI disability in excess of 70 percent from July 2, 2012. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). The Veteran is currently diagnosed with arthritis of the lumbar spine, which is considered a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis of the lumbar spine, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Service Connection for a Lumbar Spine Disorder The Veteran contends that the claimed lumbar spine disorder is related to an in-service injury from a motor vehicle accident in September 1986. The evidence shows a current disability of degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). See January 2021 VA Examination. The Board also finds that, while the Veteran experienced an in-service motor vehicle accident in September 1986, the weight of the evidence shows that symptoms of the lumbar spine disorder were not chronic in service. According to the September 1986 service treatment records, the Veteran caught his right hand under a vehicle during a motor vehicle accident. While the service treatment records are complete and the records document the motor vehicle accident, there are no complaints of or treatment for lumbar spine symptoms related to the accident in the service treatment records. In fact, there are no complaints of or treatment for lumbar spine symptoms in the service treatment records at all, in contrast to non-related minor complaints and injuries being documented. See September 1986 (Injured wrist); September 1986 (Common cold); March 1987 (Laceration above the left eye). At service separation, in June 1987, the Veteran affirmatively reported that he did not experience recurrent back pain and the military medical examiner found that the spine was in normal condition. The weight of the evidence is against finding that the symptoms of the lumbar spine disorder were continuous after service separation or manifested to a compensable degree within one year of separation from service. The first report of lumbar spine symptoms of record is in November 2010 VA treatment records, approximately 23 years after service separation. The Board finds that the Veteran is not credible in recent reporting that the symptoms of the lumbar spine disability were chronic in service, continuous after service separation, or manifested to a compensable degree within one year of separation from service. The Veteran's recent lay statements made to support the current compensation claim are outweighed by the more contemporaneous evidence of record, including the absence of back history of injury or complaints or treatment during service when other disorders were complained of or treated, the Veteran's own reported lay history at service separation deny past or current back problems, normal findings in the June 1987 service separation examination, and an absence of post-service treatment as an additional factor during a 23-year gap between service separation and the first evidence of treatment of the lumbar spine. The January 2021 VA examiner explained that degenerative disc disease is caused by the aging process of the spine, which provides a post-service explanation for the current disability that suggests post-service onset of associated symptoms in the years after service. The Board finds that the weight of the evidence shows that the lumbar spine disability did not have its onset in service and is not otherwise etiologically related to service. The Veteran submitted to a VA examination in January 2021. The VA examiner opined that the lumbar spine disorder is less likely than not incurred in or caused by the claimed in-service injury. The VA examiner reasoned that there are no records of back injury or back pain during or immediately after military service and that the disorder is caused by the aging process of the spine; such factual assumptions of absence of symptoms in service or for years after service, though expressed in terms of absence of treatment, is a factually accurate assumption that is consistent with the facts the Board has found in this case after weighing the evidence. For these reasons, the Board finds that criteria for service connection for a lumbar spine disorder, under all theories of service connection, have not been met; thus, the appeal must be denied. 2. Rating the Headache Disability from July 2, 2012 Disability rating are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38C.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 civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1, 4.21. Disability ratings are based upon 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. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. In this case, the Veteran is in receipt of a 30 percent disability rating for the service-connected headache disability from July 2, 2012 under DC 8100. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable (0 percent) rating is warranted with less frequent attacks. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months. A 50 percent rating is assigned for migraine headaches when a veteran has very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Although prostrating attacks are not defined in the rating criteria, medical guidance used by the VA Compensation Service suggests that such an attack causes one a lack of strength to the point of exhaustion. See VA Compensation Service's Medical Electronic Performance Support System. "Prostration" is defined as extreme exhaustion or powerlessness. See Dorland's Illustrated Medical Dictionary, 1531 (32 ed. 2012). Similarly, "prostrate," as an adjective, is defined as completely overcome and lacking vitality, will, or power to rise. See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/prostrating, (last visited October 26, 2021). After a review of the evidence, lay and medical, the Board finds that for the entire rating period the service-connected headache disability manifested in characteristic prostrating attacks occurring on an average once a month over last several months, without evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. According to VA treatment records, the Veteran either denied experiencing headaches or did not claim that the headaches resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See February 2013 VA Treatment Records (Denied headaches); May 2015 VA Treatment Records (Denied recurrent headaches); June 2015 VA Treatment Records (Denied headaches); October 2016 VA Treatment Records (Reported headaches lasting 2 months affecting the eye) February 2017 VA Treatment Records (Headaches with vision issues but no mention of severity, frequency, or duration); February 2018 VA Treatment Records (Denied headaches); March 2018 VA Treatment Records (Reported that headaches were more frequent but did not mention severity, frequency, or duration); December 2020 VA Treatment Records (Reported headache pain but no mention of severity, frequency, or duration). The Veteran submitted to VA examinations in January 2017 and January 2021. In the January 2017 VA examination, the Veteran reported that the headaches lasted one to six hours and they typically occur once a month. The January 2017 VA examiner found that the Veteran experienced one prostrating attack per month. In the January 2021 VA examination, the Veteran reported throbbing headaches that "felt like fire" and the VA examiner found that the Veteran experienced one prostrating attack per month. Neither VA examiner found any evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The foregoing evidence demonstrates that, for the entire rating period on appeal from July 2, 2012, the headache disability has not been manifested by very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. For this reason, the Board finds the criteria for a higher initial rating in excess of 30 percent for migraine headaches have not been met or more nearly approximated at any time during the rating period on appeal from July 2, 2012. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. 3. Rating the TBI Disability from July 2, 2012 The Veteran is in receipt of a 70 percent disability rating for the TBI disability from July 2, 2012 under DC 8045, and has appealed for a higher rating. 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. Adjudicators are to rate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to rate 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, they are to separately rate any residual with a distinct diagnosis that may be rated under another DC, 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. Id. Adjudicators are to rate 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, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Adjudicators are to rate physical (including neurological) dysfunction based on the following list, under an appropriate DC: 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. Id. 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, adjudicators are to rate under the most appropriate DC. Adjudicators are to rate each condition separately, as long as the same signs and symptoms are not used to support more than one rating and combine under § 4.25 the ratings for each separately rated condition. The rating assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the rating for a single condition for purposes of combining with other disability ratings. Id. 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." 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. Adjudicators are to assign a 100-percent rating if "total" is the level of evaluation for one or more facets. If no facet is rated as "total," adjudicators are to assign the overall percentage rating 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 rating if 3 is the highest level of evaluation for any facet. Id. The rating assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one rating is assigned for all the applicable facets. A rating evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are rated separately. After review of all the lay and medical evidence of record, the Board finds that the criteria for an initial rating higher than 70 percent for the TBI disability are not met or approximated for any period. Throughout the rating period, from July 2, 2012, the TBI disability has been manifested by the following symptoms with level of impairment for each facet in parentheticals: mild memory loss (2), normal judgment (0), social interaction is inappropriate most or all of the time with the Veteran reporting that he has had significant difficulties with social interactions in that he has many times made inappropriate remarks in social settings (3), orientation to person, time, place, and situation always (0), normal motor activity (0), moderately impaired visual spatial orientation as the Veteran often got lost in unfamiliar surroundings and has difficulty interpreting maps (2), and subjective symptoms of headaches, light sensitivity, and sound sensitivity that mildly interfere with work and activities of daily living (0), one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them with the Veteran reporting substantial changes in his personality and behavior (2), normal communication (0), and normal consciousness (0). The Veteran submitted to a VA examination in January 2017. The VA examiner found objective evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Veteran reported forgetfulness, difficulty using the computer, and frustration with these impairments. The VA examiner noted normal judgment. The Veteran's social interaction was inappropriate most or all of the time; the Veteran reported significant difficulties with social interactions because he has made inappropriate remarks in social settings on multiple occasions. The Veteran was always oriented to person, time, place, and situation and had normal motor activity. The VA examiner noted that the Veteran had moderately impaired visual spatial orientation because the Veteran often got lost in unfamiliar surroundings and had difficulty interpreting maps. The Veteran's subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships. The Veteran reported that he has significant recurrent migraine headaches. The VA examiner noted that the Veteran had one or more neurobehavioral effects that frequently interfered with workplace interactions, social interactions, or both but do not preclude them. The Veteran reported substantial changes in his personality and behavior, including irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, and moodiness. The Veteran claimed that these personality changes have significantly affected his social interactions and workplace interactions. The VA examiner noted that the Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. The Veteran's consciousness was normal. The Veteran submitted to a VA examination in December 2020. The VA examiner found objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Veteran reported poor recent memory and poor concentration when performing mental tasks since the TBI. The Veteran's judgment was normal, and his social interaction was routinely appropriate. The Veteran was always oriented to person, time, place, and situation. The VA examiner noted that the Veteran had normal motor activity and normal visual spatial orientation. The VA examiner also found that the Veteran had three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. The Veteran reported frequent severe headaches associated with hypersensitivity to light and noise that can interfere with the ability to work. The VA examiner found that the Veteran did not exhibit any neurobehavioral effects. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. The Veteran's consciousness was normal. The overall percentage rating is assigned based on the level of the highest facet demonstrated, and the highest level of severity for any facet in this case is "3," which is consistent with a 70 percent rating under the rating criteria; therefore, the criteria for an initial rating higher than 70 percent under DC 8045 for the TBI disability are not met or approximated for any period. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.