Citation Nr: A21019577 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 210319-147275 DATE: December 8, 2021 ORDER Entitlement to a compensable rating for a traumatic brain injury (TBI) is denied. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's TBI has been manifested by no greater than Level 0 impairment. CONCLUSION OF LAW The criteria for a compensable rating for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1963 to November 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the March 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303 (2020). 1. Entitlement to a compensable rating for a TBI In February 2020, the Veteran filed an increased rating claim for his TBI. The representative asserts that "[t]o the extent that the veteran has TBI symptoms that are distinguishable from his PTSD, the veteran is entitled to [an] increased rating." See March 2021 VA Form 10182. Residuals of a TBI are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2020). Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and may impact cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical functioning. Each of these areas of dysfunction may require evaluation. Id. 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 these brain functions may be affected in each individual with cognitive impairment, and some functions may be affected more severely than others. In each individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" (hereinafter "TBI Table"). Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the TBI Table. However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, should be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the TBI Table. Emotional/behavioral dysfunction is evaluated 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, emotional/behavioral symptoms are evaluated under the criteria in the TBI Table. Physical (including neurological) dysfunction is evaluated 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. Diagnostic Code 8045 stipulates that the preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed here that are reported on an examination are evaluated under the most appropriate diagnostic code. Each condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and each separately rated condition is combined under 38 C.F.R. § 4.25. 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. Diagnostic Code 8045 also states that the TBI Table contains 10 important facets of a 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 to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The regulation provides the following example: assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. There are five notes that accompany Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the TBI Table 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 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. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. A January 2020 VA mental disorders examination report noted that the Veteran had an unspecified depressive disorder and PTSD symptoms. The examiner acknowledged that the Veteran was service connected for a TBI but noted that a review of the record indicated that there were no residual symptoms related to the Veteran's TBI. It was also noted that the Veteran reported that he was diagnosed with attention deficit hyperactivity disorder (ADHD) and had memory and focus problems. He stated that he had been prescribed medication for his ADHD, but he had stopped taking it because he did not like it. Psychological testing, Miller Forensic Assessment of Symptoms Test (M-FAST), revealed as score of 2, which was consistent with the Veteran's self-reporting. Specifically, testing revealed that the Veteran's attention was unimpaired as he demonstrated the ability to repeat 4 digits (Digit Forwards task) and attended to examiner questions relevantly. His concentration was impaired as he was unable to demonstrate the ability to perform a serial seven task without error. Memory was impaired as he was only able to spontaneously recall one of four words during a memory task and only able to recall two words when given a clue/prompt and able to recognize the fourth word when it re-presented in a multiple-choice question. His abstract ability was unimpaired as he was able to decipher the meaning of a saying. The examiner noted that the Veteran's psychiatric symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgment, and disturbances of motivation and mood. The examiner noted that mental status examination demonstrated concentration and memory difficulties associated with the Veteran's depression. The Veteran was provided a VA TBI examination in March 2020. The examiner noted that the Veteran was diagnosed with a TBI in 1965. The Veteran denied any complaints of impairment of memory, attention, concentration, or executive functions from his TBI. His memory, motor activity, and visual spatial orientation were assessed as normal. His social interaction was noted to be routinely appropriate. He was noted to be conscious and always be oriented to person, time, place, and situation. The examiner opined that there were no neurobehavioral effects related to the Veteran's TBI. The Veteran was noted to be able to communicate by spoken and written language and to comprehend spoken and written language. The Veteran denied any subjective TBI symptoms. The examiner indicated that there were no other physical findings, scars, complications, signs, or symptoms related to the Veteran's TBI. The examiner noted that the January 2020 mental disorder examination had been reviewed and acknowledged that the M-FAST test had revealed memory impairment. However, the examiner noted that those findings were attributed to the Veteran's depressed mood not his TBI. Accordingly, the examiner opined that the Veteran's TBI did not result in any functional impact. VA treatment records dated throughout the pendency of the appeal, are silent for any symptoms or treatment related to the Veteran's TBI. Additionally, the records consistently indicate that the Veteran was oriented and denied symptoms including neurological deficits, headaches, visual changes, and dizziness. See e.g., August 21, 2019, August 28, 2019, September 20, 2019, October 10, 2019, and February 11, 2020. After reviewing the evidence of record, the Board finds that a compensable rating for TBI is not warranted. As noted above, in addition to TBI, service connection for PTSD with unspecified depressive disorder, unspecified anxiety disorder, and alcohol use disorder in full remission, rated as 50 percent disabling, has been in effect throughout the pendency of the appeal. See October 2020 rating decision. While the evidence indicates that the Veteran has symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory loss, impaired judgment, and disturbances of motivation and mood, those symptoms were consistently attributed to his PTSD and separately rated under 38 C.F.R. § 4.130, Code 9411 (2020). As no symptoms or complaints have been attributed to the Veteran's TBI, the probative evidence indicates that his highest level of TBI impairment is a zero. Therefore, a compensable rating is not warranted. The Board acknowledges the representative's request for a compensable rating for any TBI symptoms that were distinguishable from the Veteran's PTSD. Nevertheless, throughout the pendency of the appeal, neither the Veteran nor his representative described any objective or subjective TBI symptoms that would warrant a compensable rating under Diagnostic Code 8045. The Board has not overlooked the Veteran's statement that he has a scalp scar from the in-service head injury that caused his TBI. Specifically, he reported that the hair over the scar is flat and he must pay extra attention to that area to make the hair look normal. See February 2020 statement. The VA treatment records are silent for any evidence of a head scar and the TBI examination report indicated that the Veteran did not have a scar related to his TBI. Assuming arguendo, the Veteran had a TBI related scar, the evidence is against granting a separate compensable rating as there is no evidence that the scar was unstable, painful, resulted in any characteristics of disfigurement, or resulted in any functional impairment. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2020). While the Veteran reported that his hair over the scar was "flat," he has not asserted that the scar was more than 5 inches in length, more than one-quarter inch wide, that the scar is elevated or depressed, adherent to the underlying tissue, hypo-or hyper-pigmented, abnormal in skin texture, indurated and inflexible, or that there is underlying soft tissue missing. Accordingly, there is no evidence of disfigurement for VA purposes. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (defining characteristics of disfigurement). As such, a separate compensable rating for his self-reported scar is not warranted. In the absence of competent and probative medical or lay evidence of compensable TBI symptoms, distinct from the symptoms already compensated under the Veteran's 50 percent rating for PTSD, the claim must be denied. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.