Citation Nr: 21008274 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 18-21 291 DATE: February 12, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI) with headaches prior to October 27, 2020 is denied. FINDING OF FACT For the period on appeal prior to October 27, 2020, the Veteran’s TBI with headaches was manifested by no more than level 1 impairment of any cognitive function. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for TBI with headaches prior to October 27, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.20, 4.21, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1959 to May 1963. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is of record. This matter was previously remanded by the Board in January 2020. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See, Stegall v. West, 11 Vet. App. 268 (1998). In a November 2020 rating decision, the Veteran was awarded a total 100 percent schedular rating for his TBI disability effective October 27, 2020. Since the Veteran has been granted the maximum, total rating for his TBI disability beginning October 27, 2020, the Board will only consider whether a rating in excess of 10 percent is warranted for the period on appeal prior to October 27, 2020. Entitlement to a disability rating in excess of 10 percent for TBI with headaches prior to October 27, 2020 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Court has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Legal Criteria TBI is evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. TBI residuals are rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 is complex and comprehensive, and gives much instruction to the rater, as follows: 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. The rater is to 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.” The rater is 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. 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, 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. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms requires consideration of the table “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” which 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. Assign a 100-percent evaluation 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. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. For the facets of memory, attention, concentration, and executive functions, a “0” level of impairment is assigned with no complaints of impairment. A “1” level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A “2” level is assigned with objective evidence on testing of mild impairment. A “3” level is assigned with objective evidence on testing of moderate impairment. A “total” level is assigned with objective evidence on testing of severe impairment. For the facet of judgment, a “0” level of impairment is assigned for normal judgment. A “1” level is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A “2” level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. A “3” level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A “total” level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities. For the facet of social interaction, a “0” level of impairment is assigned when social interaction is routinely appropriate. A “1” level is assigned when social interaction is occasionally inappropriate. A “2” level is assigned when social interaction is frequently inappropriate. A “3” level of impairment is assigned when social interaction is inappropriate most or all of the time. For the facet of orientation, a “0” level of impairment is assigned when always oriented to person, time, place and situation. A “1” level is assigned when occasionally disoriented to one of the four aspects of orientation. A “2” level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A “3” level is assigned when often disoriented to two or more of the four aspects of orientation. A “total” level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the facet of motor activity, (with intact motor and sensory system) a “0” level of impairment is assigned for normal motor activity. A “1” level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A “2” level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A “3” level is assigned for motor activity moderately decreased due to apraxia. A “total” level is assigned for motor activity severely decreased due to apraxia. For the facet of visual spatial orientation, a “0” level of impairment is assigned when normal. A “1” level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as GPS (global positioning system). A “2” level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS. A “3” level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A “total” level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. For the facet of subjective symptoms, a “0” level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A “1” level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). A “2” level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days). For the facet of neurobehavioral effects, a “0” level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A “1” level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A “2” level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A “3” level is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. For the facet of communication, a “0” level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A “1” level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A “2” level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A “3” level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A “total” level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs. For the facet consciousness, a “total” level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. The following notes apply to Diagnostic Code 8045. See Notes (1)-(4), 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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. 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. Analysis The Veteran raised a claim of entitlement to an increased rating in December 2013. He had an examination for his TBI in May 2015. The examiner noted that the Veteran was diagnosed with a TBI in 2011. The Veteran reported being involved in a car accident in service. The Veteran reported that he was nor taking continuous medication for his TBI. He had no complaints of impairment of memory, attention, concentration, or executive functions. The Veteran’s social interaction was reported to be routinely appropriate. Motor activity was normal. His judgment was normal and he was oriented to person, time, place and situation. However, his visual spatial orientation was mildly impaired, noting that the Veteran occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions and is able to use assistive devices such as GPS. The examiner noted that the Veteran has difficulty finding his car in the parking lot. The Veteran had subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family or other close relationships. The examiner noted that the Veteran was sensitive to light and experienced headaches. The examiner noted that the Veteran had one or more neurobehavioral effects that do not interfere with workplace or social interaction. Specifically, the examiner noted that the Veteran was easily irritated without cause and lacks motivation to get things started. The Veteran was able to communicate by and comprehend spoken and written language. Consciousness was normal. He had no residuals other than headaches. In an April 2016 statement, the Veteran stated that he has a hard time following some conversations and most of the time he does not remember what was said. The Veteran further stated that he is always losing or misplacing his wallet, keys, glasses, books, or other items. He also stated that he cannot remember the names of people he just met and has a hard time concentrating. Additionally, the Veteran stated that gets lost in places he has been before, and he cannot follow a series of verbal instructions. In an April 2016 statement, the Veteran’s wife stated that the Veteran has difficulty remembering how to get around town to places he goes often. She further stated that the Veteran is unable to remember how he gets to places, and that she does most of the driving. Additionally, she stated that the Veteran is frequently disoriented in large buildings, such as hospitals and large stores. Furthermore, she noted that the Veteran’s headaches make him uncomfortable, and his irritability has gotten worse over the years. At the October 2019 Board hearing, the Veteran and his wife testified that the Veteran has severe memory issues. The Veteran’s wife testified that he cannot drive anywhere without a navigator or maps. She further testified that Veteran cannot remember how to get to places such as his daughter’s house or his doctor’s office. The Veteran also testified that he has difficulty finding his car in the parking lot. Additionally, the Veteran testified that he has significant communication issues. He testified that he frequently cannot think of a word right away. The Veteran further testified that he is often irritable and that he has constant headaches. Comparing the Veteran’s symptoms during the appeal period to the rating schedule, the Board finds that a higher rating is not warranted. The May 2015 examination resulted in a 10 percent based upon the highest severity level of “1,” which was assigned for the following facet: visual spatial orientation, and neurobehavioral effects. In this regard, even noting the Veteran’s complaints, there was no objective evidence of memory impairment or other impairment of attention, concentration, or executive function. The subjective symptom of headaches and sensitivity to light were not shown to interfere with work or other activities of daily living. The Veteran’s examination demonstrates no symptoms which would render a higher disability evaluation. VA treatment records through September 2020 support the findings of the earlier examination, in that they contain no complaints of memory deficits or concentration problems. Although the Veteran’s October 2020 examination supported the grant of a total rating, it represents the first objective evidence of impairment. Accordingly, the criteria for a disability rating in excess of 10 percent were not met for the period on appeal prior to October 27, 2020. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.