Citation Nr: A21018744 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 211007-189563 DATE: November 23, 2021 ORDER Entitlement to a compensable initial rating for a traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran's TBI does not result in any compensable impairment. CONCLUSION OF LAW The criteria for entitlement to a compensable initial rating for a residuals of a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes (DC) 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1946 to January 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran service connection for residuals of a TBI. The Veteran initially appealed this decision to the Board, but later switched to the Higher-Level Review Lane. A Higher-Level Review decision was issued in April 2021. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board notes the Veteran has additional issues pending on the legacy docket following a January 2020 Board remand order. Those issues will be the subject of a separate Board decision. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to a compensable initial rating for a traumatic brain injury (TBI) The Veteran seeks a compensable initial rating for his residuals of a TBI. He asserts this disability has resulted in a level of impairment in excess of that contemplated by a noncompensable rating, and an increased rating is thus warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 required for that rating. 38 C.F.R. § 4.7. This disability is rated under Diagnostic Code (DC) 8045, for residuals of a TBI. This Code states that 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, including neurological. Each of these areas of dysfunction are defined and described in detail in the Rating Schedule and may require evaluation. 38 C.F.R. § 4.124a, DC 8045. 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. Disability ratings are assigned based on the level of impairment for each facet. That is, based on the levels assigned, the Board determines which facet allows for the highest disability rating under DC 8045, which states that impairment 0 warrants a 0 (noncompensable) rating, impairment 1 warrants a 10 percent rating, impairment 2 warrants a 40 percent rating, and impairment 3 (which is the highest level of evaluation for any facet) warrants a 70 percent rating. Distinct, comorbid diagnoses, including any conditions service-connected secondary to the TBI, are evaluated under the appropriate diagnostic codes. If the symptoms associated with the distinct comorbid diagnoses do not overlap with those used to assign the highest disability rating under DC 8045, a separate rating will be assigned under the applicable diagnostic code. If, however, the symptoms associated with the distinct comorbid diagnoses do overlap with those used to assign the highest disability rating under DC 8045, the Board must determine which diagnostic code allows for the highest rating for the overall level of impaired functioning due to both conditions. See 38 C.F.R. § 4.124a, DC 8045, Note (1). During the pendency of this appeal, the Veteran was afforded VA examinations in March 2017 and April 2020. Each of these examinations considered all the 10 rating facets for determining the impairment resulting from a TBI. Both examiners noted that while the Veteran's TBI occurred in 1946 or 1947, onset of memory loss and other cognitive symptoms occurred many years later, according to the evidence of record, and thus is more likely due to aging and not a TBI. For example, the 2017 VA examiner noted that private treatment records dated between 2009 and 2014 generally described the Veteran's memory as fair to good, along with a good fund of knowledge, clear speech, and normal moods. Per the examiners, residuals of a TBI, if any, usually appear immediately following the initial injury. In assessing the Veteran, each examiner listed the impairment found to result only from the service-connected TBI. VA and private medical treatment records have also been obtained and reviewed. Considering the VA examinations in light of the 10 TBI facets, the Board finds the preponderance of the evidence to be against a compensable initial rating at any time during the pendency of this appeal, as the record does not indicate the level of impairment sufficient to warrant a compensable rating. With respect to the first facet - memory, attention, concentration, and executive functions both examiners found no complaints or evidence of impairment of memory, attention, concentration, or executive functions attributable to the service-connected TBI. While the Veteran was noted to display memory loss and other cognitive impairment, this was attributed to his advanced age and not his TBI. See Mittlieder v. West, 11 Vet. App. 181 (1998). Such findings warrant a level of impairment of 0. Regarding the second facet - judgment - the Board finds that a level of impairment higher than 0 is not evident during the relevant period. Although the Veteran's spouse reported that he was "acting crazy" following his separation from service, the Veteran's judgment has been described as normal by both VA examiners. There is no indication to the contrary in the treatment records; nor has the Veteran described any impairment in judgement in lay statements. With regard to the third facet - social interaction - the Board finds that a level of impairment greater than a 0 is not demonstrated by the evidence of record. Again, the relevant evidence shows that the Veteran's social interaction is routinely appropriate. There is no lay or medical evidence of record to the contrary. Similarly, concerning the fourth facet - orientation - the Board finds that a level of impairment greater than 0 is not shown during the relevant period, as the medical evidence reflects that the Veteran is consistently described as oriented to person, time, place, and situation, and he has not otherwise described being disoriented in any of the four aspects based on impairment resulting from his TBI. For the fifth facet - motor activity (with intact motor and sensory system) - the preponderance of the evidence reflects that the Veteran's motor activity has remained normal throughout the appeal period. Therefore, a level of impairment higher than 0 is not evident during the appeal period. Likewise, with respect to the sixth facet - visual spatial orientation - the Board notes that the medical evidence reflects that the Veteran's visual spatial orientation was described as normal on both the March 2017 and April 2020 VA examination reports. Therefore, a level of impairment of 0 is warranted for this facet. Regarding facet seven - subjective symptoms - both VA examination reports note no such symptoms attributable to the Veteran's TBI. While the Board is cognizant that the Veteran has complained of headaches, balance issues, and light sensitivity, the VA examiners indicated that these symptoms were not attributable to the Veteran's TBI. See Mittlieder, Supra. Although an April 2020 VA examiner stated that the Veteran's headaches are "most consistent with post-traumatic headaches," no rationale was provided for this opinion. In contrast, the March 2017 VA examiner indicated that the Veteran's headaches are not related to his TBI because the condition did not begin in service. It was noted "the recognized timeline for TBI residuals is that [the] residuals start[] immediately after the concussion . . .." The Board places greater weight of probative value on this examiner's conclusion because the statement is supported by a rationale. The Board further notes the Veteran has been granted a separate service connection award, with a 20 percent disability rating, for a left eye disability resulting from his TBI. As such, any impairment of the left eye has already been considered as part of this award. Therefore, the Board concludes that an impairment level of 0 is warranted for the subjective symptom facet for the entirety of the appeal. As for facet eight - neurobehavioral effects - the evidence of record does not contain any indication of neurobehavioral effects as both the March 2017 and April 2020 VA examinations found no evidence of neurobehavioral effects attributable to the Veteran's TBI. Thus, the Board finds that a level of impairment of 0 is applicable for this facet. For the ninth facet - communication - a level of impairment greater than 0 has not been shown, as the relevant consistently evidence shows the Veteran is able to communicate and comprehend spoken and written language. The Board further notes that the Veteran testified on his own behalf at a prior Board hearing in February 2017. Finally, for the tenth facet - consciousness - a "total" level of impairment, which indicates a persistently altered state of consciousness, is neither shown by the evidence of record nor asserted by the Veteran. Accordingly, after review of the impairment levels assigned under the TBI table, the Board finds that an impairment level of 0 is warranted for the entirety of the appeal, based on the objective evidence of little to no impairment resulting from the service-connected TBI since July 11, 2015, the effective date of this award. As a final matter, the Board notes that the lay and medical evidence of record also does not demonstrate the Veteran's need for special monthly compensation (SMC) due to his TBI for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance, being housebound, etc. Therefore, entitlement to SMC is not warranted in this case. See 38 C.F.R. § 4.12a. In conclusion the preponderance of the evidence is against a compensable initial rating for the Veteran's residuals of a TBI. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.