Citation Nr: 21067859 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-17 102A DATE: November 5, 2021 ORDER Entitlement to an increased rating of 100 percent for residuals of a traumatic brain injury (TBI) with neurocognitive disorder and unspecified bipolar disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his TBI residuals were manifested by symptoms more closely approximating total occupational and social impairment. 2. The record does not reflect the Veteran was unable to obtain or retain substantially gainful employment due solely to his service-connected disabilities other than his TBI residuals with neurocognitive disorder and unspecified bipolar disorder. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 100 percent for TBI residuals have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2019); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2020). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1997 to June 1998. He appeals an August 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to a rating greater than 50 percent for TBI residuals with mild neurocognitive disorder and unspecified bipolar disorder. Originally, the Veteran requested a hearing before the Board of Veterans' Appeals (Board). See December 2017 VA Form 9. However, he withdrew his hearing request in a September 2019 letter; accordingly, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). As a preliminary matter, the Board notes the Veteran and his prior representative argued the Veteran's increased rating should have an effective date of "17 years ago" when he was first service connected for TBI in a February 1999 rating decision. See March 2017 VA Form 27-0820; August 2018 Representative statement. However, the Veteran has not substantively appealed the effective date of the increased rating claim and there is no evidence the Veteran alleged a specific error in the February 1999 rating decision which would rise to the level of an allegation of previous clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also December 2016 VA Form 27-0820 (Veteran stated his NOD is "for the correct rating and disability for TBI and residual of TBI"). As such, those issues are not currently before the Board. Increased Rating for TBI Residuals Disability ratings are determined by applying a schedule of ratings 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. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The AOJ rated the Veteran's TBI residuals under 38 C.F.R. § 4.130, DC 9434 as his TBI residuals include cognitive, emotional, and behavioral effects on functioning. The Veteran contends his service-connected TBI residuals are more severe than his current 50 percent rating would indicate. Under DC 9434, A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms 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, and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, DC 9434. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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 maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or name. Id. The list of symptoms in the above rating criteria are meant to be examples that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Finally, although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). During the appeal, the Veteran received three psychiatric examinations by VA and submitted three private psychiatric examinations for consideration. After review of these examinations in conjunction with the Veteran's copious VA treatment records and lay statements or record, the Board finds the Veteran's symptoms more closely approximate total social and occupational impairment. In April 2016, the Veteran's VA psychologist, Dr. C.G. noted the Veteran exhibited difficulty adapting to stressful circumstances, impairment of short- and long-term memory, and near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. However, during the entire appeal period, the record reflects the Veteran also exhibited impaired impulse control, suicidal ideation, the inability to establish and maintain effective relationships, spatial disorientation, and inappropriate behavior and persistent delusions to the extent he physically threatened various VA employees and illegally recorded interactions with others. Both the May 2018 VA examiner and November 2020 opinion provided by Dr. S.H. concluded that the Veteran had total occupational and social impairment due to symptoms such as gross impairment in thought processes, persistent delusions, impaired impulse control, obsessive rituals which interfere with routine activities, and the intermittent inability to perform activities of daily living (ADLs), among others. See May 2018 VA examination report; November 2020 Dr. S.H. examination report. The Board agrees with these assessments. The Veteran's persistent delusions were confirmed by an August 2018 VA examiner and are also reflected in his extensive VA treatment records. See August 2018 VA examination report ("he also demonstrated a clear and persistent delusion that in-service providers and military separation processes he went through covered up the severity of his injury...he currently believes that VA 'wants him dead' due to his actions."). For example, December 2016 VA treatment records note the Veteran believed he was "misled in his care and exit from HUD-VASH," and VA treatment records reflect the Veteran consistently believed organizations had nefarious motives and he obsessively sought treatment for questionable health concerns. See, e.g., September 2017 VA treatment records ("believes his doctor is working against him intentionally because they believe VA will not pay them"); April 2019 VA treatment records (Veteran believes he was "being targeted by the Sarasota Housing Authority (SHA), VA, Social Security Administration, and Department of Children and Families...the SHA was covering up for the landlord's desire to increase his rent"). In October 2017, the Veteran contacted his VA physician challenging the accuracy of VA's medical assessment of a recent CT scan; the physician noted the Veteran was "convinced that he must have a structural problem in his brain and that the VA is not looking hard enough or as he states 'purposefully cropping' out parts of imaging studies...he cannot be convinced otherwise." See October 2017 VA treatment records. In March 2018, a VA cardiologist noted the Veteran was "obsessed with his cardiac issues, even though in reviewing his records, the patient has NO major cardiac problems...he does not want to trust anybody...wants to repeat [testing]." February 2020 VA treatment records reflect the Veteran changed his locks because "he believed someone broke into his home to return a baking dish" and his social worker noted "he frequently exhibits paranoid thoughts and ideas of reference." February 2020 VA treatment records also note the Veteran believed VA was "lying to him about his medical conditions." Also, the Veteran is not able to finish his appointments on time due to his obsession of perceived errors in his medical records and diagnoses. See, e.g., February 2017 VA treatment records ("appears to be looking at [scanned images] obsessively"); August 2020 VA treatment records. Finally, the record reflects the Veteran illegally recorded his conversations and photographed imaging without his physicians' knowledge and continued to do so despite repeated warnings. See, e.g., April 2016, December 2016, October 2017, and October 2018 VA treatment records. Thus, the Veteran's delusions and impairment in thought and judgment totally impair his ability to maintain effective relationships and appropriately function in society. The record also reflects the Veteran has suicidal ideation and threatened physical harm on others. For example, in January 2016, the Veteran was involuntarily hospitalized for threatening suicide in a grossly inappropriate email to VA care providers. See January 2016 and February 2016 VA treatment records. Although the Veteran consistently denied any suicidal intent or plans, he did state he was "always suicidal" and regularly commented during the appeal period that he would welcome heaven and "being with Jesus" over a negatively perceived alternative. See January 2016 VA treatment records; July 2017 VA treatment records ("I look forward to being dead. I would be in heaven"); October 2020 VA treatment records ("would rather be in heaven than move to P. County"). Regarding the Veteran's symptoms causing a persistent danger to others, in August 2020, the Veteran physically threatened his VA primary care physician and required a VA police escort for all subsequent VA appointments. See August 2020 and October 2020 VA treatment records. He additionally threatened he would involve "the media and Congress members to help him" when a request to VA was denied. See October 2020 VA treatment records. Additionally, the Veteran has total occupational impairment due to his TBI residuals with acquired psychiatric disorders. See June 2019 Dr. R.B. examination report ("he would probably not be able to seek and secure employment"). For example, the record reflects the Veteran's employment at all prior occupations were terminated for various reasons, including his own father's HVAC business. Id.; see also March 2021 VA Form 21-8940. The Veteran was terminated from a medical assistant position in July 2012 for "substandard work" just before two years of employment. See July 2012 Veteran email; May 2018 VA Form 21-8940. He then worked less than a year as a medical assistant before he was "fired for reporting an incident." See November 2015 VA treatment records. Finally, the Veteran worked for less than a year at a VA medical center as an orthotic fitter when his employment was terminated during the probationary period. See April 2018 VA Form 21-4192. The Veteran's February 2015 termination letter noted unacceptable conduct and "failure to follow supervisory instructions, time and leave issues, and inappropriately accessing [his] medical records several times." The Veteran reported "disagreements with his supervisor" and coworkers at all prior employment. See February 2017 VA treatment records. Additionally, physicians during the appeal period noted the Veteran was unable to establish relationships and has difficulty adapting to stressful circumstances, including work settings. This combined with his neurocognitive disorder symptoms of memory loss and impaired concentration render the Veteran totally occupationally impaired. Overall, the Veteran's symptoms also more closely approximate total social impairment. Although the Veteran reported attending weekly church sessions, has relationships with his parents and two siblings, and referenced various friends throughout VA treatment records, the Veteran only reported having a few friends but "no close trusted friends" and he isolated himself from people and did not date. See, e.g. May 2018 VA examination report; November 2020 Dr. S.H. examination report. Additionally, the record reflects the Veteran has grossly inappropriate behavior, such as answering his door naked. See October 2018 VA treatment records. Thus, his minimal social relationships when combined with his documented repetitive threats to VA, persistent delusions, poor judgment, inappropriate behavior, and impaired thought reflect the Veteran's TBI residuals with neurocognitive and bipolar disorder more closely represent total social impairment. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's symptoms more nearly approximate total social and occupational impairment, the rating criteria for a 100 percent disability rating. As such, the Board grants entitlement to an increased rating of 100 percent for TBI residuals with neurocognitive and bipolar disorder. The Board considered other potential ratings for the Veteran's service-connected TBI residuals, including a separate rating under DC 8045. DC 8045 states the three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. See 38 C.F.R. § 4.124a, DC 8045. Any residual cognitive, emotional, and physical dysfunction resulting from the TBI that does not meet the requirements for a separate disability rating, such as the Veteran's separate rating under DC 9434, are to be rated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. This table is used to evaluate cognitive impairment and subjective symptoms, and contains table contains 10 facets of TBI residuals related to cognitive impairment and subjective symptoms. The facets include: (1) memory, attention, concentration, and executive functions; (2) judgment; (3) social interaction; (4) orientation; (5) motor activity; (6) visual spatial orientation; (7) subjective symptoms; (8) neurobehavioral effects; (9) communication; and (10) consciousness. Id. The Veteran received numerous TBI VA examinations in addition to Mental Disorder VA examinations during the appeal period. These examinations reflect that all of the Veteran's TBI residuals are attributable his current total rating under DC 9434. For example, Dr. C.G. noted the Veteran exhibited memory loss and neurobehavioral effects that interfered with workplace and social interaction. See April 2016 Dr. C.G. examination report. An April 2017 VA examiner found the Veteran had similar symptoms in addition to impaired judgment and social interactions. The May 2015 and August 2018 VA examiners noted no additional facets of TBI residuals. In July 2016, a VA examiner noted the Veteran had subjective symptoms, which included anxiety and sleep impairment. The July 2016 VA examiner also checked the examination box that the Veteran suffered from a "persistent altered state of consciousness, such as vegetative state, minimally responsive state, or coma," which is not supported by the record and the Board finds was mistakenly selected by the examiner. The aforementioned symptoms are all encompassed in the Veteran's 100 percent rating under DC 9434 for TBI residuals with neurocognitive disorder and unspecified bipolar disorder. Assigning a separate rating under DC 8045 based on neurocognitive dysfunction, poor judgment, anxiety, chronic sleep impairment, social impairment, and/or memory loss would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology, neurocognitive and psychiatric symptoms for which he is already rated as totally disabled. 38 C.F.R. § 4.14. Thus, based on the evidence, the Veteran is not entitled to a separate rating under DC 8045. Additionally, the Board considered whether the Veteran was entitled to a separate rating under DC 8100 for headaches. The Veteran reported to suffer from prostrating headaches at a May 2018 VA examination as a residual of his TBI "three to five times a week" that included symptoms of nausea, pain, sensitivity to light and sound, and changes in vision. The Board finds the Veteran's reports within the May 2018 VA examination not credible when weighed against the remainder of the record. No other VA examiner or private physician examining the Veteran's TBI residuals noted the Veteran suffered from headaches. See, e.g. July 2016 VA examination report; November 2020 Dr. S.H. examination report. Further, the Veteran's expansive medical records do not note treatment for such severe headache symptoms. In fact, the Veteran denied suffering from headaches on numerous occasions. See, e.g. November 2016, February 2017, May 2017, and August 2020 VA treatment records. Thus, the Board finds the Veteran is also not entitled to a separate rating for headaches under DC 8100. Accordingly, all potentially applicable diagnostic codes have been considered and the Board grants entitlement to an increased rating of 100 percent for TBI residuals with neurocognitive and bipolar disorder. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). TDIU The issue of entitlement to TDIU has been raised in this case and must be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Pursuant to the Order above, the Veteran's TBI residuals with neurocognitive disorder and unspecified bipolar disorder is now rated at 100 percent disabling during the entire appeal period. The Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the rating schedule indicates that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). (Continued on the next page) The Veteran is currently service connected for residuals of a fractured clavicle and seizures, both of which are rated as noncompensable. See February 2021 rating decision codesheet. Disability ratings are intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. 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. See 38 C.F.R. §§ 3.321(a), 3.340, 4.1; Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran's remaining service-connected disabilities are noncompensable and neither the Veteran's statements nor the medical evidence of record suggests his fractured clavicle residuals impede his employability. Additionally, the Veteran consistently denied suffering a seizure during the appeal period and noted no symptoms. See, e.g., August 2018 VA examination report. As such, entitlement to TDIU for the Veteran's service-connected disabilities other than TBI residuals with neurocognitive and unspecified bipolar disorder is denied. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.