Citation Nr: 21008010 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-17 463 DATE: February 11, 2021 ORDER Entitlement to an increased rating of 10 percent prior to December 11, 2019, and 40 percent thereafter for residuals of a TBI is granted. Entitlement to service connection for an acquired psychiatric disability is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for a low back disability is remanded. FINDINGS OF FACT 1. Prior to December 11, 2019, the Veteran’s highest level of impairment for residuals of his TBI is a “1;” thereafter, his highest level of impairment is a “2.” 2. The preponderance of the evidence is against finding that the Veteran’s diagnosed psychiatric disabilities began during active service or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating, but no higher, prior to December 11, 2019, and a 40 percent rating, but no higher, thereafter for residuals of a TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, Diagnostic Code 8045. 2. The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1999 to February 2004. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a January 2016 rating decision. In an October 2019 Board decision, the Veteran’s claims for service connection for a psychiatric disability and an increased rating for a TBI were remanded. The Board finds the remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an increased rating for residuals of a TBI The Veteran became service-connected for his TBI in a January 2016 rating decision rated at 0 percent effective July 27, 2015, the date of claim. In a July 2020 rating decision, his rating was increased to 10 percent disabling effective December 11, 2019, the date eligibility for an increased rating became factually ascertainable. The current version of Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124, Diagnostic Code 8045. The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” 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. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The current version of Diagnostic Code 8045 contains the following notes: 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. Diagnostic Code 8045 also instructs to evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings – mental disorder) 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 a Traumatic Brain Injury Not Otherwise Classified.” The Veteran first underwent a VA examination for his TBI residuals in December 2015. Regarding current residual symptoms, he endorsed recurrent headaches, difficulty with recalling recent new information or names, difficulty concentrating, difficulty with adapting to new circumstances, sensitivity to noise, and tinnitus. Under the 10 facets, the examiner assigned a “0” for each facet except under memory, attention, concentration, and executive functions for which a “1” was assigned for a complaint of mild memory loss. In his January 2017 Notice of Disagreement, the Veteran endorsed dizziness, headaches, and sensitivity to light on a daily basis. In his April 2017 VA Form 9, he endorsed memory loss and impaired judgment, which has an impact on social interactions with family and coworkers. The Veteran was provided another VA examination in December 2019. Regarding residual symptoms, the Veteran endorsed recurrent headaches, a short attention span, and difficulty with concentrating since his head injury. He also endorsed several behavioral changes, including irritability, impulsivity, lack of motivation, verbal aggression, belligerence, lack of empathy, moodiness, and lack of cooperation. His behavioral issues have had an adverse effect on his relationships at home and at work. He stated he was terminated from a job and is going through a divorce due to these behavioral issues. In light of the above, the examiner assigned a “1” for a complaint of mild memory loss, a “1” for 3 or more subjective symptoms that mildly interfere with work, activities of daily living, and relationships (recurrent headaches, hypersensitivity to light, and hypersensitivity to sound), and a “2” for the neurobehavioral effects described above. The evidence shows the Veteran’s highest level of impairment is a “2” as of December 11, 2019. Of note, the Veteran is separately rated for headaches as of December 11, 2019; while he complained of these symptoms prior to the December 2019 examination, this would have only warranted a “1” level of impairment as the evidence shows the Veteran experienced dizziness, daily headaches, tinnitus, hypersensitivity to sound and light, and difficulty sleeping – all symptoms associated with a “1” level of impairment. Conversely, the symptoms associated with the “2” level of impairment for subjective symptoms are marked fatigability, blurred or double vision, and headaches requiring rest periods during most days – none of which the evidence shows prior to December 11, 2019. Thus, the Board finds that prior to December 11, 2019, the Veteran was entitled to a 10 percent rating for mild memory loss and subjective symptoms that mildly interfere with work, instrumental activities of daily living, and relationships. The Board acknowledges that when a veteran has a mental diagnosis he should be rated separately; however, in this case, the Veteran is not service connected for his mental diagnoses. Thus, the Board finds that the behavioral effects of his TBI residuals are separate from his other mental diagnoses (ADHD and depressive disorder) for rating purposes, and as such, a rating under the TBI criteria is warranted, entitling the Veteran to a “2” level of impairment under neurobehavioral effects. A higher rating is not warranted as the Veteran does not exhibit a “3” or “total” rating. While the Board acknowledges the Veteran’s contentions of impaired judgment and impaired social interaction, the evidence does not reflect moderately severely impaired judgment, such as the occasional inability to identify, understand, weigh the alternatives, understand the consequences of choices, and make a reasonable decision for even routine and familiar decisions. Rather, the record reflects that the Veteran struggles with new or unfamiliar decisions. While the record does reflect difficulty with interacting with his wife and coworkers, the record does not reflect that his social interaction is inappropriate all or most of the time. In sum, the Veteran is entitled to 10 percent rating prior to December 11, 2019 and a 40 percent rating thereafter for one or more neurobehavioral effects that interfere with workplace interaction, social interaction, or both but do not preclude them. 2. Entitlement to service connection for an acquired psychiatric disability The Veteran’s mental health claim has been broadened to include any psychiatric disability, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. §3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), which requires a diagnosis which conforms to the DSM-5; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Veteran has received mental health treatment since August 2014. In his initial evaluation, he stated he has struggled with depression and anxiety all his life. The treatment note states his PTSD, anxiety, depression, and anger issues were diagnosed a long time ago. The evaluation also indicated that the Veteran likely suffered from an attention deficit disorder (ADD). His listed stressors were financial constraints, a recent move, conflict with his wife, and chronic mental illness with suboptimal treatment. At this visit, the listed diagnoses were major depressive disorder, generalized anxiety disorder, PTSD, and ADD; however, it is unclear what criteria his treating provider considered in rendering her PTSD diagnosis. There is no mention of the Veteran’s time in service. In his December 2014 mental health appointment, it is reflected that the Veteran shared more about his personal history including past traumatic experiences in the military. No further elaboration on these past traumatic experiences was given. The majority of therapy sessions revolved around discord in his marriage and resulting custody and legal issues. In July 2015, he stated he had several injuries in the Navy which are not in his medical record. He stated he was on submarine duty in the Navy. In February 2016, he stated he had significant social anxiety, memory issues, nightmares, and flashbacks from incidents he suffered in service. In June 2017, his treating provider provided an addendum clarifying the February 2016 record. She stated the Veteran was not involved in combat himself but suffers from PTSD from riding submarines in the Navy even though he was not a submarine volunteer. In his NOD, he stated his private provider had diagnosed him with PTSD and anxiety due to service. In his VA Form 9, he stated he underwent several deployments and was in receipt of Danger pay/hazardous duty pay, as well as sea pay due to his submarine service. The Veteran underwent a VA examination in December 2019. The examiner concluded that the Veteran does not meet the diagnostic criteria for PTSD under DSM-5 criteria, but he does have a diagnosis of ADHD and unspecified depressive disorder. Regarding an in-service stressor, the Veteran reported that he was involved in top secret submarine operations in the Pacific and the Gulf, and there was an incident where an enemy submarine was near their submarine. The examiner found this stressor was inadequate to support a diagnosis of PTSD. The examiner further explained that the Veteran did not endorse symptoms meeting the clinical threshold for a diagnosis of PTSD, and his reported stressor did not meet the stringent criteria required for Criterion A. Additionally, his symptoms were not solely related to the in-service stressor. Regarding his other mental diagnoses, the examiner explained that ADHD is empirically believed to be the result of complex genetic and environmental factors (not by stressor-related events). She noted that most of his treatment records from 2014 and 2015 relate symptoms due to ongoing life stress and relationship/marital discord. His service treatment records are absent for any persistent mental health condition, and mental health problems are denied on the available in-service examinations. Arguably, while the Veteran’s service experiences may have caused anxiety symptoms, his medical records are absent for such evidence, and the examiner concluded the probability of both diagnosed disorders being proximately due to service is less than 50 percent. In sum, she concluded that the Veteran’s diagnosed psychiatric disabilities are unrelated to service. The Board finds the December 2019 VA opinion highly probative as it considers the history provided by the Veteran, his service and post-service treatment records, and the diagnoses and conclusions are based on the DSM-5 criteria. Regarding a diagnosis of PTSD, the Board finds the evidence is against a current diagnosis. While the Veteran’s private provider has listed PTSD as a diagnosis, and appears to associate it with service in the June 2017 addendum, there is no mention of whether the diagnosis conforms with the DSM-5 criteria, and there are only vague, general references to the Veteran’s time in the military and submarine duty. The only specific in-service stressor the Veteran has provided was deemed inadequate to meet the DSM-5 criteria in the December 2019 examination. Thus, the Board concludes that a diagnosis for PTSD has not been shown by the record. See Willis v. Derwinski, 1 Vet. App. 66 (1991) (While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion). Regarding the Veteran’s other psychiatric disabilities, the Board finds the evidence does not support an in-service incurrence. By the Veteran’s own admission, he has suffered from depression and anxiety symptoms all his life. As explained by the December 2019 examiner, as it relates to ADHD, it is a predisposed disability not caused by stressor-related events. The Veteran’s private treatment records primarily reflect discussions surrounding current stressors with his wife, children, and work; indeed, his private provider listed only post-service events as his stressors and the December 2019 examiner attributed his symptoms to such. His service records do not reflect any incurrence of mental health symptoms. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of his psychiatric disabilities. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In sum, the evidence weighs against the Veteran’s claim for service connection for a psychiatric disorder, and his claim must be denied. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for a low back disability In the October 2019 Board decision, the Veteran’s claim for an increased rating for a low back disability was denied. A September 2020 Court of Appeals for Veterans Claims (Court) signed a Joint Motion for Partial Remand (JMPR) by the parties, vacating and remanding that part of the October 2019 decision. According to the JMPR, the October 2019 decision erred by relying on 2015 and 2017 VA examinations for the Veteran’s back disability that failed to comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, in accordance with the Court’s order, the claim is remanded for a new VA examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for his back. In that regard, there is evidence in the claims file that VA has recently received returned mail from the current address on file. A recent CLEAR report shows several phone numbers potentially associated with the Veteran. As such, the Board emphasizes that additional efforts should be made to contact the Veteran, such as ensuring each phone number listed in the CLEAR report is called and attempting to reach the Veteran by email. The examiner must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If this testing cannot be done, the examiner should clearly explain why this is so. The examiner should also note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. The examiner must also comment on or describe, to the extent possible, the impact the Veteran’s low back disability has on his functioning during flare-ups or with repeated use over a period of time. In doing so, the examiner MUST elicit from the Veteran subjective reports of his functioning under such conditions and consider such reports along with all other pertinent evidence. If the examiner is still unable to provide such an opinion, he or she MUST explain why that is so in specificity. The examiner should note that the inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.