Citation Nr: 21073986 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-32 143 DATE: December 13, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for traumatic brain injury (TBI) prior to November 25, 2016 is denied. Entitlement to an increased rating in excess of 70 percent for TBI beginning November 25, 2016 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 25, 2016 is denied. Entitlement to TDIU from November 25, 2016 to April 29, 2019 is granted. FINDINGS OF FACT 1. Prior to November 25, 2016, the Veteran's TBI disability manifested by mild symptoms, with the highest level of severity from all facets as level 1. 2. From November 25, 2016, the Veteran's TBI disability did not manifest by "total" impairment in any facet. 3. Prior to November 25, 2016, the Veteran's service-connected disabilities did not prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. 4. From November 25, 2016 to April 29, 2019, the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 10 percent for TBI prior to November 25, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.124a, Diagnostic Code 8045. 2. The criteria for entitlement to a rating in excess of 70 percent for TBI from November 25, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.124a, Diagnostic Code 8045. 3. The criteria for an effective date for TDIU prior to November 25, 2016 have not been met. 38 U.S.C. §§ 1155, 5110 (a); 38 C.F.R. §§ 3.400, 4.16. 4. The criteria for an effective date for TDIU from November 25, 2016 to April 29, 2019 have been met. 38 U.S.C. §§ 1155, 5110 (a); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to August 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in May 2021. The Board remanded this case for the Agency of Original Jurisdiction (AOJ) to obtain VA treatment records and to issue a Supplemental Statement of the Case (SSOC). The Veteran's file was updated with VA medical records and a SSOC was produced in August 2021. The case is now before the Board. The Board notes the Veteran was scheduled for a Board hearing. However, in April 2021, the Veteran's representative canceled the hearing and requested that the case be decided on the information of record. Increased ratings for TBI Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, 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. 38 C.F.R. § 4.21. The rating of the same disability under various diagnoses, also called pyramiding, is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected rating, and the rating of the same manifestation under different diagnoses are to be avoided. See id.; Esteban v. Brown, 6 Vet. App. 259 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Residuals of TBI are evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. DC 8045 includes a table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified," which addresses 10 facets of a traumatic brain injury. 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 as "total." A level 0 impairment is consistent with a 0 percent disability rating, level 1 with 10 percent rating, level 2 with 40 percent, level 3 with 70 percent disability rating, and the highest level ("total") with a 100 percent disability rating. Id. The 10 important facets of cognitive impairment and other residuals of TBI not otherwise classified are: (1) memory, attention, concentration, 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 overall evaluation assigned is based upon the highest level of severity for any facet. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Subjective symptoms that are residuals of a TBI, whether they are part of cognitive impairment, should be evaluated under the subjective symptoms facet. However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, 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. Note 1 associated with DC 8045 states that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental, neurologic, or other physical disorder that can be separately evaluated under another DC. In such cases, the rater is not to assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, the rater should assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. Note 2 provides that symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note 3 states that "instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. According to Note 4, the terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. Id. 1. Entitlement to an initial evaluation in excess of 10 percent for TBI prior to November 25, 2016 The Veteran contends that he is entitled to an increased rating in excess of 10 percent prior to November 25, 2016. As referenced above, the next higher rating of 30 percent is warranted when one of the 10 facets results in a level of severity of "2." The Veteran filed his claim for service connection for TBI in November 2012. The Veteran was subsequently afforded a VA TBI examination in August 2013. The examiner indicated that the Veteran's memory, attention, concentration, and executive functions were manifested by mild severity. The Veteran stated that he sometimes forgets where he put his keys and has occasional memory lapses. With regards to judgment, the examiner found the veteran to have mildly impaired judgment. The Veteran reported occasional problems with decision making. Social interaction was found to be occasionally inappropriate. The Veteran's stated he occasionally had problems focusing on people's conversations and would disagree a lot. The Veteran's orientation was occasionally disoriented to one of the four aspects (person, time, place, and situation) of orientation. The Veteran told the examiner that he sometimes got confused as to where he was at. The Veteran's motor activity was found to be normal. The Veteran's visual special orientation was found to be mildly impaired. The Veteran's subjective symptoms included three or more subjective symptoms that mildly interfered with work due to daily headaches. The Veteran's neurobehavior effects showed one or more effects that did not interfere with workplace or social interaction. The Veteran stated he had a lack of motivation and had symptoms of moodiness. The Veteran was found to be able to communicate complex ideas. His comprehension or expression, or both of either spoken language or written language was only occasionally impaired. The Veteran's consciousness was found to be normal. In the October 2013 rating decision, the Veteran was assigned a 10 percent rating for his TBI disability with an effective date of November 8, 2012. The RO assigned the effective date as the day the Veteran submitted his claim for benefits. The RO found that the highest level of severity was a "1." This highest mark of severity resulted in a 10 percent rating. In January 2014, the Veteran submitted a VA Form 21-526b Veteran's Supplemental Claim for Compensation. The Veteran indicated he was filing a claim for an increased rating for his TBI disability. In a September 2013 VA mental health note, the Veteran was oriented times three, and his affect was appropriate. The Veteran's concentration was noted as fair and memory was good. Additionally, the Veteran's insight and judgment were good, and his thought process was logical. In a January 2014 mental health note, the Veteran's memory, concentration, insight, and judgment were found to be "good." The Veteran was afforded a VA TBI examination in April 2014. The Veteran's memory, attention, concentration, and executive function were found to be manifested in mild memory loss. The Veteran stated that he could not remember where he puts things like shoes and pain medication. When the Veteran watched television, he would forget what the story was about. He also stated that he would forget if he took his medication or if he seasoned his barbeque. The Veteran's judgment was found to be mildly impaired. The Veteran stated that he would have a thought, change subjects, and then change the story. The Veteran's social interaction was found to be occasionally inappropriate. The Veteran stated that he would sometimes separate himself and go to another area when he has a headache or when he felt really stressed. The Veteran was found to be occasionally disoriented to one of the four aspects of orientation. The Veteran explained to the examiner at the present time he knew what he was doing, but later he would not remember what he said. Additionally, the Veteran stated that sometimes he would talk to a person one person about another individual and sometimes he would make plans to do something only to forget about it. The Veteran's motor activity was noted as normal. The Veteran's spatial orientation was noted as mildly impaired. The Veteran stated that he would forget where places are and that he didn't remember the addresses anymore. The examiner indicated that the Veteran had subjective symptoms of headaches that did not interfere with work. The Veteran had one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction. The Veteran stated that he felt impatient and that he felt alone. The examiner indicated the Veteran was able to communicate by spoken and written language and had normal consciousness. The RO continued the Veteran's 10 percent rating for TBI in the October 2014 rating decision, finding the highest level of severity in the 10 facets to be "1." In November 2014, the Veteran contacted his VA medical center and described his headaches and mentioned a head injury from 1974. He told the VA the pain starts in the frontal area with a sharp burning sensation that wraps around his head towards the back. In an August 2016 VA medical record note, the Veteran was also screened for cognitive impairment using the Blessed-Orientation-Memory-Concentration Test and was found not to have significant cognitive impairment. Based on the evidence of record, the Board finds that a rating in excess of 10 percent prior to November 25, 2016 for TBI is not warranted. A 30 percent rating is available where one of the facets corresponds to a level of "2.". 38 C.F.R. § 4.124a. Diagnostic Code 8045. As described above, the probative evidence establishes that at no point during the appeal period have any of the facets been recorded at such a level of impairment. As the probative findings on clinical examination showed that the Veteran did not manifest with an impairment higher than mild (level 1) impairment on any of the relevant facets, the preponderance of the evidence is against assignment of an initial rating higher than 10 percent during this period. The claim is denied. 38 C.F.R. §§ 4.1, 4.10, 4.124a, Diagnostic Code 8045. 2. Entitlement to an increased rating in excess of 70 percent for TBI from November 25, 2016 The Veteran contends that he is entitled to an increased rating in excess of 70 percent from November 25, 2016. The next higher rating would be 100 percent. As mentioned above, a 100 percent rating under Diagnostic Code 8045 requires a level of impairment in a facet of "total." The Veteran was afforded a VA TBI examination in November 2016. The examiner noted the Veteran had objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Veteran reported getting lost while driving, feeling confused, forgetful, and misplacing objects. The Veteran's judgment was found to be mildly impaired. The Veteran reported that he would forget to lock the house and may leave the faucet running. The Veteran also reported not being able to cook due to him forgetting about the stove. The Veteran's social interaction was noted as being frequently inappropriate. The examiner reported that the Veteran needed frequent verbal redirection to refocus and stay on subject. The examiner indicated that the Veteran was often disoriented to two or more of the four aspects of orientation. The Veteran reported the wrong day of the week. The Veteran's motor activity was mildly decreased or with moderate slowing due to apraxia. The examiner felt the Veteran had unsteady gait. The Veteran's visual spatial orientation was found to be moderately impaired. The Veteran reported not being able to use a GPS (global positioning system) or use his cell phone except for calling. The examiner indicated that three or more subjective symptoms that mildly interfered with work and instrumental activities of daily living, or work, family, or other close relationships. With regard to neurobehavioral effects, the Veteran showed one or more neurobehavioral effects that interfered with or precluded workplace interaction, social interaction, or both on most days or that occasionally required supervision for safety of self or others. The Veteran again reported that he would forget to lock his car and may leave a faucet running. The Veteran also reported that his wife had to remind him about appointments and times to take medication. The Veteran was noted as being able to communicate and comprehend by spoken and written language and to comprehend spoken and written language. As a result of the November 2016 VA examination, the RO granted an increased rating to 70 percent with an effective date of November 25, 2016 in a March 2018 rating decision. The RO noted the Veteran's TBI disability had a level of severity of "3" for 1.) orientation and 2.) neurobehavioral effects which resulted in the 70 percent rating. The Veteran was afforded a VA examination in May 2019 for his TBI disability. The examiner indicated that the Veteran's judgment and consciousness were normal. The examiner indicated mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The examiner reported that the Veteran would sometimes forget where he was driving, names of relatives, and appointments. He would misplace or lose items such as tools and keys. The Veteran's social interaction was noted as frequently inappropriate. The Veteran reported having a short fuse, avoiding social interaction, and having no filter. The examiner noted that the Veteran was often disoriented to two or more of the four aspects of orientation. The examiner went on to state that the Veteran was continuously disoriented to time, hour of day, week, month and year, and to place and situation daily while traveling. The Veteran's motor activity was mildly decreased or with moderate slowing due to apraxia. The examiner stated that the Veteran dropped utensils or tools, had poor coordination, and felt his hands and fingers were not working, which has made it difficult for the Veteran to get a job. The Veteran's visual spatial presentation was found to be moderately impaired. This manifested in a level where the Veteran would usually get lost in unfamiliar surroundings, difficulty reading maps, following directions, judging distance, and difficulty using assistive devices such as GPS. The examiner indicated the Veteran had three or more subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family or other close relationships. The Veteran reported daily headaches, marked hypersensitivity to sound with headache, mild hypersensitivity to light with headache, and marked fatigability. The examiner indicated the Veteran's TBI manifested in one or more neurobehavioral effects that interfered with or precluded workplace interaction, social interaction, or both on most days or that occasionally required supervision for safety of self or others. Communication, comprehension, or expression of either spoken language or written language were only occasionally impaired. The Veteran was able to communicate complex ideas. The examiner stated that the Veteran had problems with word finding and must repeat himself daily, and his wife does not understand him. The record does not contain any medical records, VA or private, that show the Veteran's TBI disability manifested in a severity level of "total" in any facet. Based on the evidence of record, the Board finds that a rating in excess of 70 percent for TBI is not warranted. A 100 percent rating is available where one of the facets corresponds to a total level of impairment. 38 C.F.R. § 4.124a. Diagnostic Code 8045. As described above, the probative evidence establishes that at no point during the appeal period have any of the facets been recorded at such a level of impairment. As the competent and probative findings on clinical examination showed that the Veteran did not manifest with an impairment of "total" on any of the relevant facets, the Board finds that the preponderance of the evidence is against assignment of a rating higher than 70 percent for this period of time. 38 C.F.R. §§ 4.1, 4.10, 4.124a, Diagnostic Code 8045. 3. Entitlement to TDIU prior to November 25, 2016 4. Entitlement to TDIU from November 25, 2016 VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from securing and following substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. § § 3.340, 3.341, 4.16. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. Under 38 C.F.R. § 4.16(a), if a veteran is only service connected for one disability, that disability must have a rating of 60 percent or more; if the veteran has two or more service-connected disabilities, at least one of those disabilities must have a rating of 40 percent or more, and the total combined rating of service-connected disabilities must be at least 70 percent. Disabilities affecting a single body system, or of a common etiology, shall be considered as a single disability. Rating boards should refer to the Director, Compensation Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Id. As entitlement to a TDIU is a form of an increased rating claim, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420-21 (1999). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. See 38 U.S.C. § 5110(a); see also 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. See 38 U.S.C. § 5110(b)(3); see also 38 C.F.R. § 3.400(o). More importantly, the issue of a TDIU arose during the period on appeal for the initial rating assigned for the Veteran's TBI under Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the period on appeal begins with the date the Veteran filed his claim for service connection, November 8, 2012. From November 8, 2012 to November 25, 2016, the Veteran's combined rating was 20 percent. The Veteran was rated at 10 percent for TBI and 10 percent for headaches from November 8, 2012. The Veteran's rating for his TBI disability was increased to 70 percent with an effective date of November 25, 2016. The Veteran's rating for his headache disability was increased to 50 percent with an effective date of January 30, 2017. As such, the Veteran is eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation on and after November 25, 2016, at the earliest. On April 29, 2019, the Veteran filed his VA Form 8940 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran indicated his disabilities affected his full-time employment in 1993, last worked full time in 1995, and became too disabled to work in 1995. The Veteran indicated he finished his third year of high school and completed a mechanic certificate in 1975. The Veteran has not had any education and training since he became too disabled to work. The Veteran worked as a mechanic for the last five years of his employment history and reported he had been receiving Social Security since 1995. As referenced above, the Veteran was afforded VA TBI examinations in August 2013 and April 2014. Both examinations revealed the Veteran's TBI disability manifested in mild symptoms of memory loss and judgment. The August 2013 examiner indicated that the Veteran's subjective symptoms mildly interfered with work and that the residuals of the Veteran's TBI disability (headaches) mildly impaired the Veteran's ability to work. The April 2014 VA examiner found the Veteran's subjective symptoms did not interfere with work and that the residuals of the Veteran's TBI impacted his ability to work due to dizziness and depression. The Veteran was also afforded VA headache examinations in August 2013 and April 2014. In the August 2013 VA headache examination, the Veteran stated that his headaches mildly impaired his ability to work. In the April 2014 VA headache examination, the Veteran's headache condition was found to impact his ability to work. The Veteran stated that he was not able to stand for too long, felt like he would fall down due to losing balance, and that he felt drowsy. As mentioned above, the Veteran was granted a 70 percent rating for TBI on November 25, 2016 stemming from the November 2016 VA TBI examination. During the November 2016 VA TBI examination, the Veteran reported that his memory worsened and that he suffered from chronic headache pain. The Veteran also reported that he had begun sustaining falls because of his condition. The Veteran was unable to complete an exercise where the Veteran was to count backwards from 100 by a factor of 7. The examiner noted that the Veteran's TBI disability has an impact of his ability to work. The examiner stated that the Veteran was a poor historian and had difficulties with timelines. The Veteran's retrograde and anterograde memory seemed impaired. The examiner stated the Veteran had difficulty remembering information and seemed unable to learn new material. As a result of a Montreal Status Cognitive Assessment and Saint Louis University Mentals Status testing, the examiner stated the Veteran exhibited difficulties in areas of attention, concentration, recognition, immediate and delayed recall, as well as mathematical operations. The Veteran reported that his wife would have to remind him about appointments, he was unable to complete house or yard work due to fatigue, and was unable to use a cellular phone for tasks other than calling. The Board finds that the Veteran's claim for an effective date prior to November 25, 2016 for a TDIU is denied. The Veteran's TBI and headache disabilities manifested in symptoms not shown to be of sufficient severity as to preclude substantially gainful employment. After reviewing the evidence of record, the Board finds a referral of the TDIU claim to the Director of VA Compensation Service for extra-schedular consideration is not warranted. Rather, the claim must be denied for this time period. At the same time, the Board finds that from November 25, 2016, the Veteran's service-connected disabilities have precluded all forms of substantially gainful employment consistent with his educational and employment background. The findings from the VA examination on that date are consistent with a disability picture that would not be consistent with the ability to perform substantially gainful employment. The Veteran's claim is thus granted with an effective date of November 25, 2016, which is the date of the VA TBI examination and the date the Veteran satisfied the schedular minimums for TDIU. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.