Citation Nr: 21074337 Decision Date: 12/15/21 Archive Date: 12/14/21 DOCKET NO. 15-28 214 DATE: December 15, 2021 ORDER Entitlement to a 40 percent disability rating, but no higher, for service-connected traumatic brain injury (TBI) from October 31, 2012, to October 20, 2019, is granted, subject to the laws and regulations governing the payment of monetary benefits Entitlement to a rating in excess of 40 percent from October 21, 2019, to January 11, 2021, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to October 21, 2019, the symptoms associated with the Veteran's service-connected TBI more nearly approximated a mild impairment of memory, attention, concentration and/or executive functions resulting in mild functional impairment; a higher level of disability was not shown during that time. 2. From October 21, 2019, to January 11, 2021, the preponderance of the evidence fails to demonstrate that the residuals associated with the Veteran service-connected TBI more nearly approximated the criteria for a Level 3 and/or total impairment under any of the facets under Diagnostic Code 8045. 3. The evidence of record fails to demonstrate that the Veteran's service-connected disabilities render him unable to secure or follow gainful employment during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial 40 percent disability rating, but no higher, for service-connected TBI residuals are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Code 8045. 2. The criteria for a rating in excess of 40 percent from October 21, 2019, to January 11, 2021, for service-connected TBI residuals are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Code 8045. 3. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to October 1966. In an October 2020 decision, the Board awarded an initial 50 percent disability rating for the Veteran's service-connected migraine and tension headaches. As noted in the May 2021 remand, in connection with the development ordered in the October 2020 remand, the agency of original jurisdiction (AOJ) issued a rating decision in February 2021 awarding service connection for adjustment disorder with anxiety associated with service-connected TBI, and an initial 30 percent disability was assigned, effective August 27, 2013. A 70 percent disability rating was assigned, effective January 12, 2021. As the Veteran did not express disagreement with the February 2021 rating decision, the severity of the Veteran's service-connected adjustment disorder with anxiety will not be addressed. Following the May 2021 remand, the AOJ issued a rating decision in September 2021 that awarded a 100 percent disability rating to the Veteran's service-connected TBI, along with special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s), both effective January 12, 2021. As such, the issue of entitlement to an increased rating for service-connected TBI from January 12, 2021, as well as entitlement to a TDIU from January 12, 2021, are both moot. I. Increase Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected TBI is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Under Diagnostic Code 8045, there are three main areas of dysfunction listed 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. 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. Adjudicators are to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" (hereafter "the Table"). 38 C.F.R. § 4.124a. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the Table. However, they are 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 Table. 38 C.F.R. § 4.124a. Adjudicators are 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, they are to evaluate emotional/behavioral symptoms under the criteria in the Table. 38 C.F.R. § 4.124a. Adjudicators are 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. 38 C.F.R. § 4.124a. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, adjudicators are to evaluate under the most appropriate Diagnostic Code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. 38 C.F.R. § 4.124a. The Table contains 10 important facets of 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 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. Adjudicators are to assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," adjudicators are to 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, the adjudicator should assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 38 C.F.R. § 4.124a. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. 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. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. Pertinent evidence of record includes the Veteran's lay statements, including his testimony before the undersigned Veterans Law Judge in October 2018, his VA treatment records, and VA examination reports from August 2013 and October 2019. In his October 2012 claim, the Veteran indicated that he experienced headaches, nausea and vomiting, dizziness, double vision and blurriness, as well as memory problems which he attributed to his in-service TBI. A November 2012 letter from the Veteran's treatment provider noted that he experienced migraine headaches, as well as decreased abilities in memory and concentration due to his in-service TBI. In August 2013, the Veteran underwent a VA TBI examination and, aside from his headache symptoms, the neurologist noted that he displayed normal motor activity, and that he experienced subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The neurologist then noted that those symptoms included headaches and anxiety. The neurologist also noted that the Veteran was able to communicate and comprehend spoken and written language, and that his consciousness was normal. Notably, the examiner noted that neuropsychological testing had not been performed. The Veteran also underwent a VA mental health examination. With regard to the TBI facets, the examiner noted the following: there were no complaints of impairment of memory, attention, concentration, or executive functions associated with his TBI; the Veteran's judgment was normal; his social interaction was routinely appropriate; he was always oriented to person, time, place, and situations; he displayed normal visual spatial orientation; and he had no neurobehavioral effects. In his July 2015 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran reported memory issues causing him to rely on daily lists and notes to keep organized. In an August 2015 statement, the Veteran reported that he had trouble understanding others due to concentration issues, as well as problems with memory that affected his daily life. He also reported problems with irritability and avoidance behaviors. During his October 2018 hearing before the undersigned Veterans Law Judge, the Veteran testified that he forgot things all of the time, and that he had to write appointments down in order to remember them. The Veteran underwent another VA examination in October 2019. After noting his history, the neurologist indicated that he displayed objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The neurologist noted that he misplaced objects, that he would forget tasks and appointments, that he would forget where he parked his car, and that he would get lost, and that he had trouble with focus, attention, and concentration. The examiner then noted that he had mildly impaired judgment, noting that for complex or unfamiliar decisions, the Veteran was occasionally unable to identify, understand, and weigh alternatives, understand the consequences of choices, and make a reasonable decision. He was occasionally disoriented to one of the four aspects of orientation. His social interaction, motor activity, and visual spatial orientation were normal. He experienced three or more subjective symptoms that mildly interfered with work, including dizziness, headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. The Veteran experienced one or more neurobehavioral effects that frequently interfered with workplace interaction, social interaction, or both, including headaches, irritability, and depression. The Veteran was able to communicate, and his consciousness was normal. VA and private treatment records are consistent with the findings during the VA examinations. Based on the evidence of record, the Board finds that the symptoms associated with the Veteran's service-connected TBI more nearly approximated a mild impairment of memory, attention, concentration and/or executive functions resulting in mild functional impairment for the period prior to October 21, 2019. In this regard, the Board notes that his description of memory problems have been consistent throughout the appeal period. As noted above, in his October 2012 claim, the Veteran reported memory problems due to his in-service TBI. In his July 2015 VA Form 9, he reported memory issues causing him to rely on daily lists and notes to keep organized, and during his October 2018 hearing before the undersigned Veterans Law Judge, he testified that he forgot things all of the time, and that he had to write appointments down in order to remember them. Furthermore, the Veteran's reported problems with memory and concentration have been verified by his treatment providers as demonstrated by the November 2012 letter noting his problems with memory and concentration due to his in-service TBI. The Board notes that the August 2013 VA examiner concluded that his memory problems were not related to his in-service TBI; however, medical professionals both before and after the August 2013 VA examination have attributed his memory problems to his in-service TBI including the October 2019 VA examiner. As such, the Board will resolve reasonable doubt in the Veteran's favor and find that his memory and concentration problems are attributable to his in-service TBI. Furthermore, given the consistency of his lay statements concerning the severity of his memory and concentration problems starting with his October 2012 claim, as well as the lack of neuropsychological testing at the August 2013 VA examination, the Board will again resolve reasonable doubt in the Veteran's favor and find that his symptoms more nearly approximately a mild impairment of memory, attention, concentration and/or executive functions resulting in mild functional impairment such that an initial 40 percent disability rating is warranted, effective October 31, 2012, the effective date of the award of service connection. As for a rating in excess of 40 percent, however, the Board finds that the preponderance of the evidence is against such a rating for all times under review. Indeed, despite the Veteran's complaints his memory and concentration difficulties have not been objectively shown to cause a moderate impairment of memory, attention, concentration, or executive functions resulting in a moderate functional impairment. Furthermore, as for his judgment, to receive a higher rating under the facet for judgment, the evidence must demonstrate moderately-severe impaired judgment, such as occasionally unable to identify, understand, and weigh the alternatives for routine and familiar decisions, understand the consequences of choices, and make a reasonable decision. As noted above, the August 2013 VA examiner indicated that he displayed normal judgment, and the October 2019 VA examiner indicated only mildly impaired judgment. Thus, a higher rating for judgment is not warranted. Similarly, as for his social interaction, to receive a higher rating under the facet for social interaction, the evidence must demonstrate that social interaction is inappropriate most or all the time. As noted above, however, the August 2013 VA examiner indicated that his social interaction was routinely appropriate, and the October 2019 VA examiner indicated normal social interaction. Thus, a higher rating for social interaction is not warranted. In order to receive a higher rating for orientation, the evidence must demonstrate disorientation to two or more of the aspects of time (person, time, place, situation. As noted above, however, the August 2013 VA examiner indicated that he was always oriented to person, time, place, and situations, and the October 2019 VA examiner indicated that he was only occasionally disoriented to one of the four aspects of orientation. Thus, a higher rating for orientation is not warranted. As for the Veteran's motor activity, visual spatial orientation, communication, and the August 2013 and October 2019 VA examination reports all fail to demonstrate symptomatology commensurate with a Level 3 and/or total impairment so as to warrant a rating in excess of 40 percent. Although the Veteran has symptoms involving both headaches and neurobehavioral effects, including irritability, anxiety and depression, those symptoms are accounted for in the ratings assigned to his service-connected migraine and tension headaches, and his adjustment disorder with anxiety. Thus, any further evaluation of those symptoms would constitute pyramiding. 38 C.F.R. § 4.14. Insofar as the Veteran attributed other residuals to his service-connected TBI, including dizziness, cataracts, hearing loss, tinnitus, and nausea and vomiting, the Board notes that service-connection for those alleged disabilities was explicitly denied in the September 2013 rating decision on appeal, and the Veteran did not appeal those decisions. The Board notes the argument put forth by the Veteran's representative in the November 2021 appellate brief that the January 2021 and September 2021 VA TBI examinations were inadequate to adjudicate his claims because they were conducted by a physician's assistant, not a physiatrist, psychiatrist, neurosurgeon, or neurologist. The Board notes, however, that the Veteran is in receipt of a 100 percent disability for the period addressed by these examination reports, and the 100 percent rating was assigned based on the findings contained in the January 2021 and September 2021 VA examination reports. Given this, the Board finds that the failure to utilize a physiatrist, psychiatrist, neurosurgeon, or neurologist for the examinations constitutes harmless error, such that no further action is necessary. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of residuals associated with his service-connected TBI, as he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Indeed, in assigning the initial 40 percent disability rating, the Board has relied, in part, upon his competent lay statements concerning the severity of his memory and concentration problems. However, the competent medical evidence offering detailed, specific, specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions/observations of symptoms. In summation, after resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial 40 percent disability rating is warranted under Diagnostic Code 8045 for the Veteran's service-connected TBI, effective October 31, 2012. However, the preponderance of the evidence is against higher ratings at any other point. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. TDIU As noted in the May 2019 remand, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of a claim for an increased rating when such claim is expressly raised by the veteran or reasonably raised by the record. Here, during his October 2018 hearing, the Veteran stated that, one year prior, he stopped working as a result of the symptoms associated with his service-connected migraine and tension headaches. See October 2018 Hearing Transcript, pp. 5, 8-9. Thus, the Board has jurisdiction over this issue as part and parcel of his claims for higher initial ratings and has listed such on the title page Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology of single accident or affecting both upper extremities or both lower extremities or a single bodily system are considered as one, collective or aggregate disability. 38 C.F.R. § 4.16(a). As noted in the introduction, because the Veteran is currently in receipt of a 100 percent disability rating for his service-connected TBI, along with SMC at the housebound rate under 38 U.S.C. § 1114(s) (2018), both effective January 12, 2021, entitlement to a TDIU from January 12, 2021, is moot. Beginning October 31, 2012, service connection was in place for the following disabilities: migraine and tension headaches, rated as 50 percent disabling; TBI rated as 40 percent disabling; and linear scar, rated as 10 percent disabling. Overall, his combined disability rating was 70 percent. From August 27, 2013, service connection was in place for the following disabilities: migraine and tension headaches, rated as 50 percent disabling; TBI rated as 40 percent disabling; adjustment disorder with anxiety, rated as 30 percent disabling; and linear scar, rated as 10 percent disabling. Overall, his combined disability rating was 80 percent. Therefore, the Board finds that the Veteran has met the schedular criteria for a TDIU from October 31, 2012, and the remaining inquiry is whether he was unable to secure or follow substantially gainful employment due solely to his service-connected disabilities at any point since then. To establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, in June 2019, November 2020, and May 2021 letters, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, including submitting a completed application for this benefit (VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability) and was advised as to what the evidence must show for TDIU. In the October 2020 and May 2021 remands, the Board noted that the record showed that the Veteran was asked to complete a VA Form 21-8940 in connection with this claim, but he nevertheless failed to return the form. The Veteran was notified that the information contained in that form was vital to adjudicating his claim for TDIU as the determination is made within the context of the Veteran's particular educational and occupational history. Moreover, it left the Board without sufficient information as to whether the Veteran was engaged in some form of gainful employment at any point during appeal period. The Veteran was given a third opportunity to provide the relevant employment and income information following the Board's May 2021 remand when the AOJ sent him a letter in May 2021 advising him again that he may be entitled to compensation at the 100 percent rate if he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. He was advised to complete, sign, and return the enclosed VA Form 21-8940, as well as the VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, completed by each of the employers identified on VA Form 21-8940. To date, however, the Veteran has not completed and returned a VA Form 21-8940 or VA Form 21-4192, or otherwise provided specific information needed to make an informed decision in this appeal, to include specific dates his disability had affected his full-time employment, the date he was last substantially employed, the date he became too disabled to work, time loss from work due to disability, his annual earned income to include in the past 12 months, as well as any schooling and other training. Although multiple attempts at obtain this information have been made, the Veteran has not provided the necessary information to make an informed determination as to whether he is unemployable for purposes of receiving this benefit. Although the Veteran indicated during his October 2018 hearing that he stopped working as a result of the symptoms associated with his service-connected migraine and tension headaches one year prior, see October 2018 Hearing Transcript, pp. 5, 8-9, more information was and is required to determine the Veteran's eligibility for the benefit sought as he was advised many times. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). The Board observes there is medical evidence suggesting some occupational and functional impairment due to the Veteran's service-connected disabilities during the period under review, but there is not enough information to determine whether the occupational and functional impairment associated with his service-connected disabilities, in and of themselves, warrants the award of a TDIU, given ambiguity as to the Veteran's work and income history. The Board has considered the Veteran's contentions as well as the medical records; however, as noted, the record does not contain sufficient evidence to how much work he performed during the appeal period, hours worked, annual income, or whether there is occupational impairment above and beyond what is already compensated by the schedular ratings for his service-connected disabilities. Although the Veteran and his representative have been asked to provide the information needed for informed adjudication, it has not been provided. Based on the existing evidence of record, the Board is unable to find that the Veteran cannot secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Accordingly, the claim for a TDIU must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.