Citation Nr: 21068299 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-36 675 DATE: November 9, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for TBI is denied. FINDING OF FACT The Veteran's traumatic brain injury is manifested by level "1" impairment for the memory, concentration, and executive functions facet. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for TBI have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1989 to September 1989, from May 1996 to May 1999, and from May 2001 to June 2015. This matter comes before the Board of Veterans' Appeals on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board previously remanded this claim for additional development in April 2019. 1. Entitlement to a rating in excess of 10 percent for TBI The Veteran contends that a rating greater than 10 percent is warranted for traumatic brain injury. He contends that a higher rating is warranted based on his memory impairment. Traumatic brain injury is rated according to Diagnostic Code 8045. Diagnostic Code 8045 states there are three main areas of dysfunction that may result from TBIs 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI 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. Evaluate subjective symptoms that are residuals of a 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, 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 TBI Not Otherwise Classified" table. The Rating Schedule provides further: Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" 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 level, the highest level of impairment, and 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. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation 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 evaluation if 3 is the highest level of evaluation for any facet. A December 2015 rating decision granted service connection for traumatic brain injury and assigned a 0 percent rating from July 2015. A May 2017 rating decision granted a 10 percent rating from July 2015. A July 2015 VA examination for PTSD noted mild memory loss, such as forgetting names, directions, or recent events. In November 2015, the Veteran was afforded a VA examination for TBI. The examiner opined that the Veteran had no objective evidence of memory loss. The Veteran reported that his headaches and memory loss affected his occupational performance as a high school teacher. He reported that he frequently forgot names and did not remember the content of conversation. The November 2015 VA examination noted a complaint of mild memory loss such as difficulty following conversation, remembering names of new acquaintances, or findings words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. His MMSE was normal at 30/30. The Veteran's judgment was normal. His social interaction was routinely appropriate. He was oriented to time, person, place, and situation. His motor activity and visual spatial orientation were normal. He had subjective symptoms that did not interfere with work, instrumental activities of daily living, or work, family, or other close relationships. He did not have neurobehavioral effects. With respect to the communication facet, he was able to communicate by spoken and written language and to comprehend spoken and written language. Consciousness was normal. The examination noted that there was no objective evidence of memory loss. The Veteran had a VA examination in June 2020. The examination noted a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The Veteran reported short-term memory loss and forgetfulness. Judgement was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was normal. The examination noted subjective symptoms that do not interfere with work. The examiner commented that the Veteran suffers from headaches. There were no neurobehavioral effects. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. His residuals included migraine headaches. There were no other pertinent physical complications, conditions, signs, or symptoms. Residuals of traumatic brain injury did not affect his ability to work. On review, the Board finds that the preponderance of the evidence is against the claim for a rating higher than 10 percent for TBI. The Veteran's TBI warrants a level of impairment for "1" in the memory, concentration, and executive functions facet. A rating of 10 percent applies when the highest level of impairment is "1." The Board has considered the Veteran's statements about his TBI symptoms. His statements reflect that he has headaches and memory loss. The Veteran is competent to report symptoms that he has observed through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is competent to describe his memory symptoms, such as forgetting names and conversations. Although the evidence shows mild memory loss, a higher rating is not warranted based on memory impairment, as there is no objective evidence of impairment of memory, attention, concentration, or executive functions. The evidence further reflects that he has residual migraine headaches that are related to his TBI. Service connection has been granted for migraine headaches. The rating for his migraine headaches is not currently on appeal. In conclusion, the Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent are warranted for the Veteran's service connected TBI. The criteria for a 40 percent rating are not met, as the level of the highest facet is level 1. The Board has considered the benefit of the doubt doctrine in this decision. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.