Citation Nr: 21074272 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 11-00 564 DATE: December 14, 2021 ORDER Entitlement to an initial rating higher than 10 percent for a traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran's TBI residuals manifested in no more than level 1 impairment during the entire period on appeal; any headaches experienced by the Veteran during this period were non-prostrating. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 10 percent for service connected TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case has a complicated procedural history. Service connection for TBI (claimed as residuals, head injury with headaches and dizziness) was granted in the July 2009 rating decision on appeal and assigned a 10 percent rating. The Veteran perfected his appeal in January 2011. The Board remanded the matter in June 2014 for additional development to include a VA examination, which was conducted in September 2014; a November Supplemental Statement of the Case (SSOC) declined to grant a higher rating, and the Board affirmed that action in its October 2016 decision. The Veteran appealed the October 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an order dated May 2017, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the Board's October 2016 Board decision in part as to the denied increased rating for TBI and returned the matter to the Board for adjudication consistent with the Court's decision; a September 2017 Board decision remanded the matter for additional development. An addendum medical opinion was obtained in September 2017, and the subsequent January 2018 SSOC again denied a rating increase. The Board's May 2018 remand followed, directing that a new VA review TBI examination and a new VA headaches examination and medical opinion be obtained; this was completed in October 2020. Unfortunately, due to conflicting evidence, new VA headaches examination and medical opinion and a separate VA review TBI examination were obtained in October 2021. An SSOC was issued in October 2021; an increased rating higher than 10 percent for TBI remained denied. Based on a thorough review of the procedural history and claims file, the Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The matter has returned to the Board for additional appellate review. The Court held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when raised by the Veteran or the record. In this case, the Veteran reported in his June 2007 VA 21-526 Pension claim that he has been unemployed because of his non-service-connected lung and respiratory issues since December 2006. In addition, the record does not in any manner reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service connected TBI. Accordingly, a TDIU claim has not been raised, and no action under Rice is necessary. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any doubt regarding the extent of the disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Throughout the appeal, to include in his January 2011 VA Form 9, the Veteran has asserted that his TBI is more severe than reflected by the currently assigned 10 percent rating under the rating criteria set forth by 38 C.F.R. § 4.124a, Diagnostic Code 8045. After a thorough review of the record, the Board finds the preponderance of the evidence is against the assignment of a rating higher than 10 percent for TBI at any point during the period on review. The Board observes that VA amended the regulations pertaining to the evaluation of TBI residuals, effective October 23, 2008. 73 Fed. Reg. 54693 (Sept. 23, 2008). The amended rating criteria, if favorable to the Veteran's claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to October 2008, Diagnostic Code 8045 directed that purely subjective complaints of TBI disorders were to be rated under Diagnostic Code 9304, as brain disease due to trauma. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Under Diagnostic Code 9304, purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were rated 10 percent and no more. This 10 percent rating was not to be combined with any other rating for a disability due to brain trauma. Ratings higher than 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a. Effective October 23, 2008, Diagnostic Code 8045 includes 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, 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. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified," (TBI table). Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to 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 TBI table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional / behavioral symptoms under the criteria in the TBI table. Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate Diagnostic Code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, if the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the TBI table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The TBI table contains 10 important facets of a traumatic brain injury 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, 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. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, 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. Note (2): 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. Note (3): "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," (ADLs) 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. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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 Diagnostic Code 8045. The Board has reviewed post-service treatment records, including an August 2009 primary care record where the Veteran complained about dizziness. A February 2011 hematology/oncology treatment record noted the Veteran reported an increase in headache occurrence after starting blood pressure medication. A separate February 2011 after-hours triage record noted the Veteran reported difficulty breathing and moderate to severe headaches; the Veteran was advised to call 9-1-1 and go to the nearest emergency room (ER). A February 2011 medical student record noted the Veteran's baseline history includes constant headaches. A June 2011 nursing record noted the Veteran reported dizziness when bending over and rising. A September 2013 history and physical examination noted the neurologic symptoms include headaches and dizziness. A January 2015 nursing record noted head pain described as 8/10. A January 2015 ophthalmology record noted a report of sharp headache like pain that does not las long. A June 2016 nursing record noted a report that after taking his medications, the Veteran's blood pressure increases, and he gets dizzy and has a headache. A July 2016 nursing student record noted a complaint of headache described as 4/10. An August 2017 primary care record noted a complaint of dizziness. An August 2018 ER nursing triage record noted slight headaches. A March 2020 otolaryngology record noted the Veteran reported experiencing dizziness for more than 1 year. The Board compared the above with treatment records including a February 2014 nursing record that noted a denial of dizziness. An August 2018 addendum record a denial of headaches and dizziness. A November 2019 history and physical examination noted a denial of headaches and dizziness. An October 2020 ER record noted a denial of dizziness. The Board also notes the Veteran denied headaches in a February 2011 VA hemic disorders examination. The claims file includes an April 2009 VA general medical examination wherein the examiner confirmed the Veteran experiences residuals from his 1968 head injury, specifically chronic dizziness, and intermittent headache; no neurologic deficit or memory problems noted. The claims file also includes a June 2009 TBI examination. The Veteran reported headaches about three times a week that vary in intensity anywhere from 3/10 to 9/10. The Veteran described them as constant and dull, with associated light and sound sensitivity, but without nausea or vomiting; treatment consisted of over-the-counter (OTC) pain medication and removing himself from the light and sound that bothered him. He also reported light and sound sensitivity. The Veteran also reported dizziness two to three times a week but denied vertigo. The examiner noted memory, judgment, social interaction, orientation, and motor activity were all good. The examiner noted that the Veteran meets the minimal criteria for a TBI with headaches and dizziness being the main deficit. The examiner indicated that other symptoms were of non-TBI etiology. Following the Board's June 2014 remand, the September 2014 VA TBI examiner confirmed a diagnosis of TBI from 1969. An assessment of the facets of TBI-related cognitive impairments and subjective symptoms included no complaints of memory, attention, concentration, or executive functions, normal judgement, routinely appropriate social interaction, always oriented to person, time, place, and situation, normal motor activity, normal visual spatial orientation, no reported subjective symptoms, no neurobehavioral effects, normal consciousness and an ability to communicate by and comprehend spoken and written language. No additional residuals were noted. No impact on the Veteran's ability to work noted. In the separate September 2014 VA headaches examination, the examiner confirmed a diagnosis of tension headaches from 2014. Symptoms included constant head pain, localized to one side of the head, lasting less than one day, on both sides of the head. No characteristics of prostrating attacks noted. The examiner concluded by noting that the Veteran has had tension headaches for many years, and they are not associated with his service connected TBI. No impact on the Veteran's ability to work noted. Following the Board's September 2017 remand, VA obtained an October 2017 addendum medical opinion from the VA examiner who had conducted the September 2014 examination. Following a review of the medical records, this examiner opined that the Veteran was not experiencing prostrating headaches. The examiner noted the Veteran's experienced daily headaches that lasted a few hours, but they were not related to trauma. The examiner noted the Veteran indicated he successfully treated with OTC medication and mostly worked through the pain. The examiner determined the headaches were mild to moderate. At the time of the examination, the Veteran was employed. Following the Board's May 2018 remand, the Veteran was afforded an October 2020 VA review TBI examination. During a review of the facets of TBI related impairment and subjective symptoms, the examiner noted there is objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Judgement was noted normal. Social interaction was noted appropriate. The Veteran was noted to be always oriented to person, time, place, and situation. Motor activity was noted normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). Visual spatial orientation was noted severely impaired: May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment; the Veteran is unable to read or drive due to advanced macular degeneration. Three or more subjective symptoms were noted that mildly interfere with work. The examiner noted the presence of one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. The Veteran can communicate by and comprehend spoken and written language. Consciousness is noted normal. The examiner also indicated that the Veteran experiences residuals including speech issues, headaches, and mental disorder. No impact on the Veteran's ability to work noted. In the October 2020 VA headaches examination, the same examiner confirmed a diagnosis of generalized headaches from 1968 following the accident. The Veteran's headaches are described as pulsating or throbbing pain that worsens with physical activity. Typical duration of the pain is one to two days; pain is located on both sides of the head. No prostrating attacks noted. The examiner noted the Veteran's headaches do not impact on his ability to work. In the attached October 2020 medical opinion regarding headaches, the examiner noted a review of conflicting medical evidence regarding prostrating headaches. The examiner opined that when the Veteran left work due to headaches, those headaches were not prostrating. As a rationale, the examiner noted a review of previous findings to include lay statements and previous examinations. It appears the Veteran did indeed take time off from work. However, the examiner noted that to suggest that headaches at that time were prostrating would be mere speculation and, in my opinion, highly unlikely. When used with headaches, the term prostrating means that the pain is so debilitating, it would cause someone to lay down for a period. A lay statement indicated that the Veteran left work due to headache but does not give any indication of prostrating. The author of the lay statement would have been able to indicate that the Veteran's headaches were so severe, that the Veteran would have had to lay down. But that is not the case. Even if, the author of the lay statement did not witness the prostrating and is only stating that all they are aware of is that the Veteran left work due to headaches, it would be mere speculation to state that those headaches are prostrating. In addition, the examiner indicated there is no indication of prostrating headaches in the claims file at any point in time during the appeal. As noted above, VA identified conflicting medical evidence between the October 2017 and October 2020 examinations and requested new examinations to address the conflicting evidence. The claims file shows that the Veteran was subsequently afforded a new October 2021 VA review TBI examination and medical opinion and new VA headaches examination. As to the review TBI examination, the examiner noted an in-person examination, review of the claims file, and comments from the Veteran's spouse. The examiner assessed the facets of TBI related cognitive impairment and subject symptoms. No complaints of impairment of memory, attention, concentration, or executive functions were noted. Judgment was normal. Social interaction was appropriate. The Veteran is always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was normal. The examiner indicated there are three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. No neurobehavioral effects were noted. The Veteran can communicate by and comprehend spoken and written language. Consciousness is noted normal. The only noted residual is headaches. The examiner noted the Veteran's neurological examination was essentially normal. While the Veteran has limited mobility, it is more likely because of shortness of breath, dyspnea on exertion from COPD and lung cancer. No impact on the Veteran's ability to work noted. The examiner outlined the conflicting evidence in Remarks section of the examination report. He noted, with exception of Veteran's complaints of daily headaches and dizziness, his ongoing concerns since his motor vehicle accident (MVA) in 1969, it is at least as likely as not that the issues with memory, motor impairment due to apraxia, severely impaired visual spatial skills, headaches that can render him unable to perform ADLs, and neurobehavioral issues are at least as likely as not due to some other reason other than Veteran's history of TBI which could include Veteran's co-morbid medical problems of COPD, metastatic lung cancer as well functional difficulties due to macular degeneration and mixed hearing loss. This was also outlined in the attached medical opinion. As to the VA headache examination, the examiner noted onset of headaches in 1969. Since then, the Veteran reported his headaches are daily, pull pain, with occasional severe headache pain that radiates from the back to the front. The pain is generally moderate and can be associated with photophobia. Veteran uses OTC acetaminophen to treat. Symptoms include constant head pain on both sides of the head and light sensitivity. Duration is noted as less than one day. No characteristics of prostrating attacks are noted. No impact on the Veteran's ability to work noted. The Board also reviewed multiple lay statements from the Veteran's siblings dated November and December 2008, from a co-worker dated June 2011, and statements in support of his claim from the Veteran throughout the appeal period including one dated July 2008 wherein he reported headaches and dizziness after his accident. The Board notes that the Veteran is competent to report the symptomatology he experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the evidence does not establish that the Veteran, his family, or co-worker has the medical experience or training to evaluate the severity of those symptoms on a spectrum as required for an analysis for rating purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The lay contentions are thus of markedly lower probative value than the VA examiner's opinions. The Board gives more probative weight to the opinions of the October 2021 VA examiner who conducted an in-person examination and file review, heard from the Veteran's spouse, and addressed identified conflicting medical evidence between prior examinations. Even if the conditions reported on the all the prior VA examinations are attributable to the TBI condition on appeal, a rating higher than 10 percent is not warranted at any point during the appeal period because the symptoms are only level "1" symptoms based on the revised criteria's TBI table. The Veteran's complaints of dizziness, daily mild to moderate headaches, and hypersensitivity to light are "subjective symptoms" that, as described, would not more than mildly interfere with work, and thus would not warrant more than a "1" level of impairment. A neurobehavioral effect would need to interfere with workplace or social interaction before a level "2" would be warranted. Apart from the October 2020 examination, no neurobehavior effects have been identified and to the extent that they are present, the October 2021 examiner opined that they are more likely than not due to some other reason other than Veteran's history of TBI which could include Veteran's co-morbid medical problems of COPD, metastatic lung cancer or functional difficulties due to macular degeneration and mixed hearing loss. As noted above, Diagnostic Code 8045 provides that VA separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as headaches under Diagnostic Code 8100, even if that diagnosis is based on subjective symptoms, rather than under the TBI table in 38 C.F.R. § 4.124a. Even if the Veteran's headaches were accepted as separately attributable to his TBI, the evidence in the claims file does not establish that he has prostrating attacks, as are necessary to be entitled to a separate compensable evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8100. "Prostrating" is defined as "completely overcome and lacking vitality, will, or power to rise; reduced to submission, helplessness or exhaustion." See MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/prostrating. The headaches described in the June 2009 VA TBI examination report, for example, note that the Veteran removed himself from offensive light and sound sources, but do not suggest the level of severity consistent with the "prostrating" headaches required for the minimum 10 percent compensable rating under Diagnostic Code 8100. Thus, the Board finds it more beneficial to rate the Veteran using the Evaluation of cognitive impairment and other residuals of TBI based on the TBI table to determine the appropriate rating for his TBI related symptomology. Based on the above, the Board finds that an increased rating is not warranted under either the old regulations or the amended criteria, and a single 10 percent evaluation properly reflects the Veteran's disability picture during the entire period on appeal. The benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.