Citation Nr: 21074771
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 15-03 918A
DATE: December 16, 2021

ORDER

Entitlement to a compensable rating for a traumatic brain injury (TBI) prior to January 22, 2020 is denied.

Entitlement to a 50 percent rating for migraine headaches from January 22, 2020 is granted.

Entitlement to a total disability rating based on individual unemployability is denied.

FINDINGS OF FACT

1. Prior to January 22, 2020, the Veteran's traumatic brain injury has been characterized by complaints of mild memory loss and decreased concentration; the Veteran exhibited normal judgment, normal orientation, normal motor activity, normal visual spatial orientation, no neurobehavioral effects, normal communication, and normal consciousness.

2. From January 22, 2020, the evidence is in equipoise as to whether the Veteran's headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

3. During the period on appeal, the Veteran was not unable to secure and follow substantially gainful employment due to service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable rating for a traumatic brain injury (TBI) prior to January 22, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §4.124a, DC 8045

2. The criteria for entitlement to a rating in excess of 50 percent, but no higher, for migraine headaches from January 22, 2020 and thereafter have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §4.124a, DC 8100.

3. The criteria for entitlement to a total disability rating based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2007 to February 2008, from December 2008 to January 2010, and from March 2011 to August 2011. 

An October 2020 Board decision also denied service connection for lung cancer. The appellant appealed that decision to the CAVC. An August 2021 CAVC Order vacated the October 2020 Board decision that denied a compensable rating for traumatic brain injury prior to January 22, 2020 and entitlement to a rating in excess of 30 percent from January 22, 2020 for migraine headaches and remanded the matter to the Board for further adjudication.

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).

When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to a compensable rating for a traumatic brain injury (TBI) prior to January 22, 2020

The Veteran is seeking a higher disability rating for his service-connected traumatic brain injury (TBI) The Veteran has been assigned a non-compensable rating for his service-connected traumatic brain injury (TBI) under 38C.F.R. §4.124a, DC 8045 prior to January 22, 2020.  Under this diagnostic code, there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: emotional/behavioral, cognitive (which is common in varying degrees after a traumatic brain injury), and physical. Each of these areas of dysfunction may require evaluation.

However, DC 8045 specifies that this diagnostic code applies, to a substantial degree, only to TBI symptoms that could not otherwise be evaluated under another diagnostic code.  In this case, for example, the Veteran is service connected for PTSD, which has been assigned a 70 percent rating from January 21, 2015, under 38C.F.R. §4.130, DC 9411.  This rating was assigned based on a showing of symptoms such as, mild memory loss, such as forgetting names, directions or recent events, difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. He has not disagreed with this assigned rating. 

Similarly, the Veteran is also service-connected for a migraine disorder, which is currently rated as 30 percent disabling under 38C.F.R. §4.124a, DC 8100. The Veteran has appealed this rating, and it is discussed below.  However, these physical symptoms are also not for consideration under DC 8045, as they are already addressed in a separate diagnostic code.  

Cognitive impairment is defined as "decreased memory, concentration, attention, and executive functions of the brain."  The term "executive functions" includes factors such as 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.  

The extent of cognitive impairment is evaluated under the table contained in 38C.F.R. §4.124a, which addresses "Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." The table for evaluating cognitive impairment addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms.  The table also provides criteria for levels of impairment for each facet, as appropriate, ranging from zero to three, as well as a fifth level, the highest level of impairment, labeled "total."  These facets include memory, attention, concentration and executive functions, judgment, social interaction, orientation, motor activity (with intact motor and sensory system), visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other "subjective symptoms."  If no facet is evaluated as "total," the overall percentage evaluation is assigned 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, if one facet is classified as a 3, then a 70 percent evaluation is assigned.

For the period prior to January 22, 2020, the Board concludes that a compensable rating based on cognitive impairment is not warranted. In this case, a March 2012 medical record reveals the Veterans reports of dysarthria and slurring after his TBI which is mildly improved at this time, but he notes ongoing stutter. Additionally, the Veteran reported that his concentration has been decreased since the event. 

The Veteran underwent a VA examination in July 2013, where he reported that he was involved in a fight while in service and loss consciousness, consequent to being hit by a hurled bottle on the right side of his head.  Currently, he reported that he takes Inderal, but still experienced mild memory loss, post headache.  However, the examiner noted that the Veteran's judgment was normal, his social interaction was routinely appropriate, was always oriented to all spheres, motor activity was normal, and visual spatial orientation was normal. The Veteran's subjective symptoms did not interfere with work or instrumental activities of daily living.  Additionally, the Veteran exhibited no neurobehavioral effects, normal communication, and normal consciousness.  

When applying these symptoms to the 10 facets discussed above, the Veteran's disability has been manifested by level 0 impairment for all facets except memory under the Cognitive Table. The Board notes the Veterans March 2012 report of decreased concentration following his TBI. For memory impairments, the Veteran complained of mild memory loss during the July 2013 examination. However, the Board notes while the Veteran complained of decreased concentration and mild memory loss during his March 2012 and July 2013 examinations, there was no objective evidence during testing of any impairment of attention, concentration, or executive functions. Importantly, as noted above, the Board also finds that these symptoms were already captured in the 70 percent rating he already received for his acquired psychiatric disorder.  Further, the examiner noted that the Veterans complaints of impairment of memory, attention, concentration or executive functions occur post headache, which he receives a separate disability rating for.  

With respect to judgment, such symptoms are already accounted for in the Veteran's 70 percent rating for an acquired psychiatric disorder.   In any event, even if they weren't, the objective evidence indicates that the Veteran's judgment was normal, indicative of level 0 impairment. Social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was normal. Thus, the Board finds that the Veteran experienced level 0 impairment with respect to social interaction, orientation, motor activity, and visual spatial orientation.  

Moreover, while the Veteran reported in March 2012 that he experienced dysarthria, slurring, and an ongoing stutter after his TBI, he reported that it was mildly improved at the time. Further, during his July 2013 VA examination, the Veteran did not experience any neurobehavioral effects. He was able to communicate by spoken and written language and comprehend spoken and written language. His consciousness was normal. Therefore, the Board finds that the Veteran experienced level 0 impairment with respect to such. Thus, the Veteran more nearly approximated no greater than level 0 impairment for each facet.

2. Entitlement to a rating in excess of 30 percent for migraine headaches from January 22, 2020 and thereafter

The Veteran's migraine headaches have been assigned a 30 percent disability rating under 38 C.F.R. §4.124a, Diagnostic Code (DC) 8100 (addressing migraines). A 30-percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A higher, maximum, 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38C.F.R. §4.124a.

The Veteran underwent a VA examination in January 2020 to access the severity of his service-connected migraine headaches. The Veteran reported symptoms of constant head pain, pulsating and throbbing head pain, and pain on both sides of his head. Additionally, he reported that his pain worsens with physical activity, has sensitivity to light, and sensitive to sound. He reported headaches daily, despite Botox. Further, he reported his headaches last less than one day. Upon examination, the examiner noted the Veteran's symptoms of pulsing or throbbing head pain on both sides of the head and sensitivity to light and sound. Additionally, he noted prostrating attacks of migraines more frequently than once every month. The Veteran reported that he had to quit his work due to his inability to concentrate and the examiner noted that the Veterans headaches impact his ability to work as he cannot concentrate, and his work efficiency decreases. 

In considering the above evidence, the Board notes that a 50 percent rating is warranted when migraines are present with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a , Diagnostic Code 8100. The Board further notes that "very frequent" and "completely prostrating" are not defined by the regulations. However, because the criteria for a 30 percent rating requires prostrating attacks for an average of once a month, it can be presumed that "very frequent" must require at least 2 or more completely prostrating and prolonged attacks per month. Additionally, the Court of Appeals for Veterans Claims recently found that the phrase "characteristic prostrating attacks" means "attacks that typically produce powerlessness or a lack of vitality." Johnson v. Wilkie, 30 Vet. App. 245 (2018). In other words, the term "prostrating" takes on its plain meaning of "lacking in vitality or will: powerless to rise: laid low." Id. 

The phrase "productive of severe economic inadaptability" has also not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, because it would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability (TDIU). Id. at 446 ; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum, capable of producing "severe" economic inadaptability.

Here, the evidence shows that the January 2020 examiner found that the Veteran's migraines were not prostrating and prolonged attacks productive of severe economic inadaptability. However, he found that they occur more frequently than once per month.  Specifically, lay evidence from the Veteran reveals that he experiences daily headaches with sensitivity to light and sound, which has required him to take days off work and to ultimately stop working. 

Given the above, the Board finds the evidence is in equipoise as to whether the Veteran's migraine headaches are very completely prostrating and capable of producing severe economic inadaptability. As such, the Board resolves all doubt in favor of the Veteran. Accordingly, a 50 percent rating for service-connected migraines from January 22, 2020 is granted.

TDIU

Entitlement to TDIU is part and parcel of any claim for increased evaluation when raised by the record or personally by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). Here, the Board finds that entitlement to TDIU has been raised as part of the increased rating claim on appeal.

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet App. 58 (2019).  

Further, the Board should also consider whether given the Veteran's history, education, skill, and training, in conjunction with the Veteran's physical ability and mental ability, can perform the type of activities required by the occupation at issue. See Id. Moreover, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b).

Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

3. Entitlement to a total disability rating based on individual unemployability 

After careful review of the claims file, the Board finds that the issue of entitlement to TDIU has been raised. 

In this case, the Veteran is service connected for PTSD ( rated as 50 percent disabling from September 1, 2011 and 70 percent from January 21, 2015), scars (rated as 40 percent disabling from September 1, 2011), migraine headaches (rated as 10 percent disabling from September 1, 2011 and 50 percent disabling from January 22, 2020), tinnitus (rated as 10 percent disabling from September 1, 2011), traumatic brain injury (rated as 0 percent disabling from September 1, 2011 and 10 percent from January 22, 2020), left ear hearing loss (9/1/2011, rated as 0 percent from September 1, 2011), scars, occiput (rated as 0 percent disabling from September 1, 2011).  The Veteran received a total rating of 80 percent from September 1, 2011. Therefore, the Veteran meets the schedular criteria for TDIU. 

The Board concludes that TDIU is not warranted, based on the evidence of record, because any inability of the Veteran to secure or follow a substantially gainful occupation is not a result of his service-connected disabilities. See 38 C.F.R. § 4.16 (b). Specifically, his service-connected disabilities do not, by themselves or in combination, cause unemployability.

First, a July 2013 examination for hearing loss and tinnitus, the Veteran reported he has difficulty understanding speech; mostly in the left ear and has to ask people to repeat words on a constant basis. The Veteran also reported his supervisors have repeatedly advised him he misunderstood orders due to his lack of hearing. In regard to tinnitus, the Veteran reported intermittent high pitch tinnitus which occurs approximately three times per day which is a distraction and limits his ability to focus. While the reports from the examination reveal symptoms that may impact his ability to work in certain occupations, they do not indicate that his left ear hearing loss and tinnitus prevent him from securing or following a substantially gainful occupation.

The report from the April 2015 VA psychiatric examination reflects the examiner's opinion that the Veteran had only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner did not find or otherwise opine that the Veteran's acquired psychiatric disability negatively impacted his ability to work. Thus, the Board finds the symptoms observed by the examiner at the April 2015 VA psychiatric examination do not indicate or suggest that the Veteran's service-connected acquired psychiatric disability prevents him from securing or following a substantially gainful occupation.

Next, the report from the April 2015 VA scar examination does not show that the Veterans scars have prevent him from securing or following a substantially gainful occupation. The Veteran reported that his scar pain feels tender and reopens. However, the examiner opined that the Veteran's scar disability did not impact his ability to work. Thus, the Board finds that while the Veteran experienced pain, these symptoms taken together with the opinions of the examiner, weighs against a finding that the Veteran's service-connected scar condition prevented him from securing or following a substantially gainful occupation.

The Veteran underwent a VA examination in January 2020 for his migraine headaches. Here, the examination report does not show that his migraine headaches prevent him from securing or following a substantial gainful occupation.  The Veteran reported symptoms of constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity. The examiner found that the Veterans migraine headache condition impacts his ability to work based on his reports that he cannot concentrate which leads to a decrease in his work efficiency. However, the Board notes that while the Veteran migraine condition causes limitation in his ability to work, the evidence does not show that his condition precludes him from securing or following a substantially gainful occupation.  

Finally, the Veteran underwent a VA examination for his traumatic brain injury (TBI) in January 2020. Here, the examination report does not show that his TBI prevents him from securing or following a substantially gainful occupation. The Veteran complained of memory loss, attention, concentration, or executive functions, but without objective evidence on testing. The examiner noted that the Veteran exhibited one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. The examiner reported that the Veterans residual condition of headaches cause a lack of attention and concentration due to pain. As discussed above, while the Veteran migraine headaches cause a limitation in his ability to work, the evidence does not show that his condition precludes him from securing or following a substantially gainful occupation. Further in regard to the Veterans TBI, the examiner did not indicate that his disability precludes him from securing or following a substantially gainful occupation.  

While some impairment due to his PTSD, TBI, and migraine headache conditions have been noted, the Board determines that the treatment records do not show that the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation.  Moreover, the Board finds that the clinical evidence is sufficient for the Board to make its own conclusions. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner).

Accordingly, the Board determines that despite his limitations due to his PTSD, TBI, and migraine headache, the Veteran is not incapable of finding and keeping substantially gainful employment. Because the Board finds that the Veteran is not unable to work due to service-connected conditions, a TDIU rating cannot be awarded. 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica