Citation Nr: 21075541 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-28 944 DATE: December 20, 2021 ORDER Entitlement to a compensable evaluation for residuals of traumatic brain injury (TBI) prior to October 15, 2020 is denied. Entitlement to an evaluation of 40 percent for residuals of TBI from October 15, 2020 is granted. FINDINGS OF FACT 1. Prior to October 15, 2020, the Veteran's TBI was manifested by a level zero as the highest level of any facet of dysfunction. 2. As of October 15, 2020, the Veteran's TBI residuals were manifested by symptoms the highest level of any facet of dysfunction is a level two impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for TBI residuals prior to October 15, 2020, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7; 4.124a, Diagnostic Code 8045. 2. The criteria for an evaluation of 40 percent from October 15, 2020, but no higher, for service connected TBI, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7; 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2000 to December 2004 and from May 2007 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2020 hearing before the undersigned, the Veteran's accredited representative waived initial review of all evidence that has been added to the e-folder since the April 2018 SOC was issued. 1. Entitlement to a compensable evaluation for TBI residuals prior to October 15, 2020 is denied. 2. Entitlement to an evaluation of 40 percent, but no higher, for TBI residuals from October 20, 2020 is granted. The Veteran's service connected TBI residuals are currently evaluated as 0 percent disabling under DC 8045. For the reasons listed below, and an evaluation of 40 percent is assigned from October 15, 2020. DC 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. DC 8045 provides: 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. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. 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 titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, 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 "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 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 table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 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 TBI. For residuals not listed that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition 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 "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" 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 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. A 100-percent evaluation is warranted 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. Note (1): 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 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," 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. Analysis The Veteran has separate evaluations for migraine headaches and posttraumatic stress disorder that are not before the Board. The Veteran underwent VA examinations for his TBI in September 2016, April 2017, and October 2020. At the September 2016 VA examination, the Veteran reported photophobia, headaches, and memory problems. See September 2016 Examination. The Veteran was found to have no complaints of memory, attention, concentration, or executive functions, normal judgement, social interaction is routinely appropriate, always oriented, normal motor activity, normal spatial orientation, subjective symptoms of photophobia and mild occasional headaches that did not interfere with activities of daily living, no neurobehavioral effects, and normal communication and consciousness. The Veteran's symptoms correspond with level 0 impairment under DC 8045, indicating there were symptoms, but that the TBI facets were normal. The Veteran had residuals of headaches and vertigo. Neurophysiological testing was conducted and was mildly abnormal. The examiner noted that onset of TBI related memory loss is not delayed and is not progressive. In contrast, the Veteran reported an onset of memory loss after separation, and that his symptoms worsened over time. The examiner explained that this was their rationale for indicating that the Veteran's memory facet was normal. The examiner also noted the Veteran's reports of headaches were not proximate to the brain injury exposure, but that the Veteran's memory loss and headaches were more likely associated with service-connected PTSD. At the April 2017 VA examination the Veteran was noted to have symptoms of photophobia, but the remainder of the facets corresponded to normal findings, or level 0 impairment respectively, under DC 8045. All facets were normal and neurophysiological testing showed normal results. The Veteran reported residuals of headaches and memory loss on this examination that the examiner attributed to his psychiatric disability. See April 2017 Examination. At the October 2020 VA examination, the Veteran was noted to have a cognitive/memory impairment, neurobehavioral symptoms including aggression and belligerence, photophobia, headaches with nausea, sleep issues, and difficulty with social interaction. See October 2020 Examination. For the facets, the Veteran was noted to have objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, a level two impairment, normal judgement, frequently inappropriate social interaction, a level two impairment, occasional disorientation to one of four aspects of orientation, a level one impairment, normal motor activity, mildly impaired visual spatial orientation, a level one impairment, subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships a level one impairment, one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them, a level one impairment, normal communication and normal consciousness. The Veteran's cognitive and neurobehavioral symptoms result in difficulty with occupational tasks and interactions with others, including coworkers. The findings from the October 2020 examination correspond with the Veteran's reports at the October 2020 hearing. The Veteran gave testimony as to each of the facets described above. The Veteran reported frequent inappropriate behavior in social interactions, including being belligerent, using, profanity, and berating others. In reviewing his testimony, and that of his spouse, the Board finds the VA examination findings from the October 2020 examination are consistent with his hearing testimony in evaluating the severity of his TBI disability. Based on the findings from the Veteran's October 15, 2020 testimony and the October 2020 examination, the Veteran's disability impairment from TBI is manifested by a highest facet level of 2, which equates to a 40 percent rating under DC 8045. This is in consideration of the assignment of a separate evaluation for service-connected psychiatric disability for which the Veteran has already received a 70 percent rating, in part, based on mild memory impairment. See December 2013 Rating Decision. In assigning a date for the increased evaluation, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C. § 5110(b)(2); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining when an increase is "factually ascertainable," VA will look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place. VAOPGCPREC 12-98. As noted above, the Veteran's examination results prior to the October 2020 hearing do not indicate a level one impairment or above for TBI. The evidence of record indicates a worsening disability picture over the course of the appeal. Given the Veteran's testimony is consistent with the VA examination that occurred thereafter, the most probative evidence of a factually ascertainable increase in disability is the October 15, 2020 hearing testimony. Thus, the assignment of a 40 (Continued on the next page) percent evaluation for TBI is granted from the date of the hearing on October 15, 2020. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.