Citation Nr: 21068563 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-39 386 DATE: November 10, 2021 ORDER An increased initial disability rating of 40 percent for residual memory loss associated with a traumatic brain injury (TBI) is granted, effective May 31, 2013. An initial disability rating greater than 40 percent for residual memory loss is not warranted for any portion of the appeal period. An increased initial disability rating of 50 percent for posttraumatic headaches is granted, effective May 31, 2013. FINDINGS OF FACT 1. For the entire claim period, the evidence of record has indicated that the Veteran's memory impairmenta residual of his service-connected TBIis best categorized as Level 2 impairment. 2. The evidence of record has demonstrated that, when not contemplating the ameliorative effects of medication, the Veteran experienced very frequent prostrating and prolonged attacks of posttraumatic headaches which were productive of severe inadaptability throughout the entire claim period. CONCLUSIONS OF LAW 1. The criteria for an increased initial disability rating of 40 percent, but no higher, for memory loss as a residual of a TBI are met, effective May 31, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8045. 2. The criteria for an initial increased disability rating of 50 percent for posttraumatic headaches are met, effective May 31, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100; Holmes v. Wilkie, 33 Vet. App. 67 (2020); Johnson v. Wilkie, 30 Vet. App. 245 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2008 to November 2011, to include service in Afghanistan and the Southwest Asia theater of operations. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In March 2021, the Veteran and his spouse testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in April 2021, the Board dismissed the issue of entitlement to a total disability rating based on individual unemployability (TDIU) as the Veteran had withdrawn this issue from appellate consideration. The Board then increased the Veteran's memory loss and posttraumatic headache ratings to 10 percent each and remanded them for further development. Following the Board's April 2021 decision and remand, a VA RO issued a rating decision in September 2021 that: (1) increased the Veteran's memory loss rating to 40 percent, effective August 31, 2021; and (2) increased the Veteran's posttraumatic headaches rating to 50 percent, effective August 24, 2019. But, as these increases did not represent a total grant of the benefits sought on appeal for the entire claim period, the Veteran's memory loss and posttraumatic headache increased rating issues remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). 1. Increased Initial Rating for Memory Loss As indicated above in the Conclusions of Law section, the Board finds that an increased disability rating of 40 percent, but no higher, for memory loss is warranted for the entire claim periodi.e., effective May 31, 2013. Accordingly, to this extent, the Veteran's claim is granted. In support of this determination, the Board first notes that TBI residuals are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 states that there are 3 main areas of dysfunction that may result from a TBI and have profound effects on functioning: (1) cognitive, (2) emotional/behavioral, and (3) physical. Diagnostic Code 8045 indicates that each of these 3 areas may require evaluation. Cognitive impairment, which includes symptoms of decreased memory, is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." See id. Relatedly, Diagnostic Code 8045 also directs VA to evaluate subjective symptoms of a TBI under the same table, unless these subjective symptoms are associated with a distinct diagnosis that could be evaluated under a unique diagnostic code. Relevant to the instant appeal, while the Veteran's posttraumatic headaches have been rated as associated with his service-connected TBI, they will be evaluated separately below as the Veteran's symptoms correspond with the separate diagnostic code of Diagnostic Code 8100. Next, Diagnostic Code 8045 directs VA to address emotional/behavioral dysfunction under 38 C.F.R. § 4.130the schedule of ratings for mental disorderswhen there is a diagnosis of a mental disorder. If there is no diagnosis of a mental disorder, Diagnostic Code 8045 provides that emotional/behavioral symptoms affiliated with TBI are to be rated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Lastly, Diagnostic Code 8045 states that physical dysfunctionand any other type of residual associated with TBIis to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.124a. In the instant case, the Board notes that the Veteran was separately service-connected for posttraumatic stress disorder (PTSD) and assigned a disability rating of 30 percent prior to July 26, 2019, and 70 percent thereafter. As the Veteran's PTSD ratings are not currently before the Board, and VA has indicated that the Veteran's emotional and behavioral symptoms are encompassed by the Veteran's PTSD ratings, the Board will not address the Veteran's behavioral and emotional impairments in the instant decision. See September 2021 Rating Decision. Turning back to the relevant rating criteria in the instant case, memory loss is addressed under the "Memory, attention, concentration, executive functions" facet of the table labeled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" under Diagnostic Code 8045. Under this facet, levels of impairment are provided from 0 to Total. Level 0 impairment is assigned a noncompensable rating. Level 1 impairment is assigned a 10 percent rating. Level 2 impairment is assigned a 40 percent rating. Level 3 impairment is assigned a 70 percent rating. Lastly, Total impairment is assigned a 100 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. During the course of the Veteran's appeal, he was provided 4 VA examinations pertaining to his TBI residuals. Firstly, a May 2014 TBI Residuals examination report documented the Veteran's reports of having memory loss, losing his train of thought, and a diminished ability to process information quickly. When addressing the Veteran's memory, attention, concentration, and executive functions facet, the May 2014 VA examiner characterized the Veteran's symptoms as mild complaints, but without objective evidence on testing. Thereafter, in October 2017, the Veteran reported during another TBI residuals examination that he was consistently forgetful when not on his medication, but had more focus and less issues with memory when on his medication. Similar to the May 2014 VA examiner, the October 2017 VA examiner characterized the Veteran's memory, attention, concentration, and executive functions as mild without objective evidence during testing. A similar characterization was made by another VA examiner in August 2019. Following the Board's April 2021 decision and remand, another VA TBI residuals examination was conducted in August 2021. On this occasion, the Veteran reported symptoms of memory loss, lack of concentration, and a loss of train of thought when being interrupted. The Veteran elaborated that internally he could explain things to himself, but had difficulty communicating his concerns to others. Upon examining the Veteran, the August 2021 VA examiner characterized the Veteran's memory, attention, concentration, executive functions facet as mild functional impairment displayed objectively. Separate from the VA examination reports of record, the Veteran and his spouse provided testimony during the March 2021 Board hearing concerning the Veteran's memory impairment. Specifically, the Veteran's spouse first testified that, on a daily basis, she reminds the Veteran to take all of his medications during their specified times of day and that she kept a weekly calendar for scheduled activities as the Veteran needed frequent guidance due to memory difficulties. March 2021 Board Hearing Tr. at 3. The Veteran then testified that he has had episodes when driving of forgetting where and why he is travelling to a particular locationincluding his own home. Id. at 7. Lastly, the Veteran's spouse stated that the Veteran has displayed impaired memory and focus since the beginning of their relationship in 2014. Id. at 8. In light of the above evidence of record, the Board concludes that the Veteran has displayed Level 2 impairment of the memory, attention, concentration, and executive functions facet under Diagnostic Code 8045's table labeled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. §§ 3.400(o), 4.124a. Under this level of impairment, the Veteran is entitled to an increased disability rating of 40 percent, effective May 31, 2013. Id. In reaching this determination, the Board finds the Veteran's spouse's testimony credible that the Veteran has displayed such symptoms since the beginning of their relationship in 2014. Further, in assigning this increased 40 percent rating, the Board finds the August 2021 VA examiner's characterization of the Veteran's impairment to be more probative. Specifically, it is unclear whether the characterizations provided by the May 2014, October 2017, and August 2019 VA examiners included the ameliorative effects of medication, contrary to the Court of Appeals for Veterans Claims' (Court's) holding in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Thus, affording the Veteran the benefit of the doubt, the Board applies the characterization provided by the August 2021 examiner for the entire claim period. See 38 C.F.R. § 4.3. Lastly, in assigning an increased 40 percent rating, the Board also concludes that the record does not demonstrate that the Veteran displayed Level 3 impairment during any portion of the appeal period. Under 38 C.F.R. § 4.124a, Diagnostic Code 8045, Level 3 impairmentand a corresponding 70 percent ratingrequires objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. During the above-mentioned VA TBI residual examinations, moderate functional impairment following objective testing was not noted by any VA examiner. Additionally, while the Veteran reported memory impairment to VA and private providers during the claim period, medical professionals on multiple occasions did not note any decrease in memory capacity. See, e.g., March 2021 VA Psychiatry Note (indicating that the Veteran was alert and oriented, and that the Veteran's short and long-term memory were intact); February 2019 VA Psychiatry Note (providing that the Veteran's long and short-term memory were intact); March 2018 Allegheny Health Network Treatment Record (noting no neurological deficits). Accordingly, the Board declines to assign a rating greater than 40 percent for the Veteran's memory loss as a residual of TBI for any portion of the appeal period. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 2. Increased Initial Rating for Posttraumatic Headaches Similar to the issue of memory loss, the Board finds that the Veteran is entitled to an increased initial rating of 50 percent for his posttraumatic headaches for the entire claim periodi.e., effective May 31, 2013. Thus, to this extent, the Board grants the Veteran's claim. In reaching this determination, the Board first notes that the Veteran's headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100the diagnostic code assigned for migraine headaches. Under this diagnostic code, a 50 percent rating is assigned for headaches with very frequent prostrating and prolonged attacks productive of severe economic inadaptability. Comparatively, a 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. Lastly, a 10 percent rating is assigned for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. In Johnson v. Wilkie, the Court defined several terms in interpreting Diagnostic Code 8100. 30 Vet. App. 245 (2018). Firstly, the Court defined "characteristic prostrating attacks" as "attacks that typically produce powerlessness or a lack of vitality." Id. at 252. The Court then explained that "productive of severe economic inadaptability" meant "either producing or capable of producing severe economic inadaptability." Id. at 253. The Court recently revisited Diagnostic Code 8100 in the case of Holmes v. Wilkie. 33 Vet. App. 67 (2020). In Holmes the Court held that Diagnostic Code 8100 contemplates more than just headache symptoms and "requires that VA consider all the symptoms the veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks." Id. at 73 (citation omitted). The Court specified that, when assigning a disability rating under Diagnostic Code 8100, VA must consider "whatever the symptoms the veteran experiences associated with migraine attacks[.]" Id. Moving to the evidence in the instant case, the Board first notes that the Veteran was provided 4 VA headache examinations during the claim period. VA examiners in May 2014 and October 2017 opined that the Veteran did not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. Comparatively, VA examiners in August 2019 and August 2021 both did state that the Veteran's posttraumatic headaches produced prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. In addition, the August 2021 examiner stated that, during such an attack, the Veteran could neither work nor take care of his own children. The August 2021 examiner elaborated that, during such an episode, the Veteran experienced "debilitating" symptoms rendering him "bedbound." Consistent with the August 2019 and August 2021 VA examination reports, the Board notes that, during the March 2021 Board hearing, the Veteran testified that, if he did not take his prescribed medication quickly after the onset of a headache, he would have to lay down in a dark, quiet room for an extended period of time. March 2021 Board Hearing Tr. at 10-11. The Veteran elaborated that, during such an episode, his headache could last several hoursup to an entire day. Id. The Veteran's spouse then stated that the Veteran's headaches interfered with work and that the Veteran would probably miss more than 2 days of work every month but for his employer's strict unexcused absence policy. Id. at 11. From the evidence of record, the Board concludes that the Veteran has experienced very frequent, completely prostrating and prolonged attacks migraines throughout the claim period which were productive of severe economic inadaptability. In making this decision, the Board notes that, as laypersons, the Veteran and his spouse are competent to report on all things which they have personal knowledge derived from their own sensesincluding the severity and frequency of headaches. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran and his spouse's lay reports regarding the severity, frequency, and economic impact of his migraines to be credible in the instant case. As such, the Board finds that an initial 50 percent rating under Diagnostic Code 8100 is warranted for the entire claim periodi.e., effective May 31, 2013. 38 C.F.R. § 4.124a. This is the maximum rating available under Diagnostic Code 8100. In reaching this determination, the Board finds the May 2014 and October 2017 VA examiners' opinions concerning the severity and frequency of the Veteran's headaches to be less probative as it is unclear whether these examiners included the effects of medication in providing their opinions. As considering the ameliorative effects of medication is impermissible in assigning a rating under Diagnostic Code 8100, the Board will apply the characterizations provided by the August 2019 and August 2021 examiners for the entire claim period. See 38 C.F.R. § 4.3; Jones, supra. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.