Citation Nr: 21008423 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-11 586 DATE: February 17, 2021 ORDER Entitlement to a compensable rating for residuals of a traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran does not have any discernible residuals of his TBI. CONCLUSION OF LAW The criteria are not met for a compensable rating for residuals of the TBI. 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, 4.14, 4.21, 4.25, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1962 to August 1966. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in August 2019 and remanded for further development – including to obtain all outstanding treatment records and to have the Veteran reexamined to reassess the severity of any residuals he has owing to his TBI. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a compensable rating for residuals of a TBI The Veteran contends that he is entitled to a compensable rating for the residuals of his TBI, including especially because of the extent of his headaches. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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 as a whole, 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. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In general, 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. When, after careful consideration of all procurable and assembled data, 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. The pertinent VA regulation is 38 C.F.R. § 4.124a, DC 8045, which provides for the evaluation of TBI and residuals. According to DC 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: 1) cognitive (which is common in varying degrees after TBI), 2) emotional/behavioral, and 3) physical. Each of these areas of dysfunction may require evaluation. 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 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. Adjudicators are to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to 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, they are to 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. Id. Here, the Veteran is not service connected for any other disabilities. Adjudicators are to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a. Adjudicators are 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. Id. 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, adjudicators are to evaluate under the most appropriate Diagnostic Code. Adjudicators are to 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. Id.   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. Adjudicators are to assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," adjudicators are to 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. Id. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of TBI are evaluated separately. An October 2014 correspondence from Dr. D explains the Veteran has anxiety and an attention disorder that affect his normal functions. The report of a March 2016 VA examination shows the Veteran’s medical history “suggests a TBI concussion by injury in Germany” and that he attributed his head injury to being attacked. This examiner found that the Veteran’s memory, attention, concentration and executive function were normal, as well as his judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication, and consciousness. Further, he had no subjective symptoms. The examiner explained the Veteran’s headaches are a residual of his TBI. However, for the same reasons as discussed in the August 2019 Board remand, the Board finds this examiner’s opinion that the Veteran’s headaches were a residual of a TBI is not probative. Specifically, the medical evidence of record does not support that he had chronic headaches until 2014, despite his March 2016 statement during the examination that he had migraines daily since 1964, so for way longer. In a November 2015 written statement, the Veteran reported having had headaches on and off since the attack during service that caused his TBI, and that he sometimes gets dizzy while walking. In June 2016, the Veteran underwent a VA examination for his headaches. At this examination, the examiner noted the Veteran’s service treatment records (STRs) do not show that he was attacked during his service with subsequent head injury as he had reported, rather, the STRs reflect that he fell out of a car and hit his head. Further, the STRs show he received stitches to his head, lost consciousness while receiving stitches, and was kept for observation at the emergency room. The examiner pointed out that private treatment records from Dr. D from 2007 to 2013 did not mention any complaints of headaches, and a VA treatment record from May 2016, when the Veteran established care with VA, also did not show any headache complaints. Ultimately, this examiner opined that “it is less likely than not (less than 50% probability) [the Veteran] has headaches primarily due to his head trauma or secondary to his TBI.” This opinion was based on the lack of documentation of headaches in the STRs and post-service for some 50 years after the in-service head injury. In October 2016, the Veteran submitted a September 2016 private opinion from Dr. D. Dr. D stating that it is his opinion that “the incident in 1963 (approximately) causing injury to his head has caused the headaches that are with him today.” Dr. D. also stated that he had been treating the Veteran since 1993 and he has had headaches weekly during that time. However, this is not reflected in the private treatment records from Dr. D. The Board sees the September 2016 private opinion from Dr. D was previously found to be inadequate because there was no rationale, no clinical records supporting his opinion, and there was no indication he had reviewed the Veteran’s STRs, so including concerning the head trauma at issue in service. Even further, this doctor’s statement that the Veteran suffered headaches daily was contrary to the Veteran’s own statement during the June 2016 VA examination that he had a headache occurring every two weeks and Dr. D’s own treatment records. On a December 2016 VA Form 21-4138, Statement in Support of Claim, the Veteran’s attorney contended the Veteran has memory problems, difficulty with concentration, impaired judgment, confusion, dizziness, anxiety, and social interaction problems. In May 2017, the Veteran submitted another letter from Dr. D again stating that he believes the Veteran’s headaches are related to his head injury during service, however, Dr. D noted that the Veteran’s migraines were now occurring daily. For the same reasons as already discussed, the Board also finds this opinion to be inadequate. As discussed in the August 2019 decision concerning the Veteran’s headaches, the Board points out that there are more than 117 treatment entries from Dr. D between 2006 and 2013 provided in private treatment records and none of them contain mention of complaints of headaches. Partly because of these inconsistencies, and pursuant to the Board’s August 2019 remand of this claim, VA obtained an updated opinion based on a file review in April 2020. After reviewing the entire claims file, this examiner opined that the Veteran had never sustained a TBI. Rather, his head injury in service does not meet the criteria to be considered a TBI or concussion. This examiner explained that the medical evidence of record does not support that the Veteran sustained a chronic, disabling TBI, concussion, or head injury before, during, or after active service. This examiner classified the Veteran’s head laceration during service as acute, meaning of short duration and resolved during service, and his report of fainting after that head injury was noted to be a vasovagal syncope occurring while receiving stitches, not immediately following his head injury. Thus, this reviewing examiner explained that the Veteran’s head injury does not fit the criteria to be considered a TBI.   The examiner then explained that, because the Veteran does not have an underlying TBI, there can be no residuals of such and, further, the Veteran does not have residuals from his acute head injury in service (so even if not considered a TBI). In explanation, this examiner pointed to the lack of complaints of headaches in the STRs and the Veteran’s denial of any unconsciousness, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or frequent headaches on his July 1966 Report of Medical History, completed by him for his separation from service. Finally, concerning the onset of migraine headaches in 2014, as supported by the medical evidence of record, this commenting examiner clarified that mild TBI or concussion symptoms can present post-acute event or within a few days after the injury and typically resolve within two weeks to three months post event. As such, any residuals presenting more than three months after the Veteran’s January 1964 head injury are not consistent with a TBI, concussion, or head injury. This means his headaches that onset over five decades after his head injury are not attributable to his in-service head injury. The examiner also indicated the Veteran has comorbid conditions, including insomnia and anxiety, which can have symptoms including headaches and cognitive challenges, and that medication, Androgel, has been prescribed, which includes headaches as a known side effect. In May 2020, VA obtained additional private treatment records from Dr. D from 1993 to the present. These records are largely silent as to complaints of headaches. The Veteran also submitted private treatment records from Dr. S.Y. in May 2020. These records show the Veteran denied headaches in October 2016, January 2017, May 2017, July 2017, October 2017, July 2018, September 2018, November 2018, February 2019, April 2019, August 2019, February 2020, and April 2020. These records do not mention headaches other than the Veteran denying them on the above stated dates.   In August 2020, VA obtained an updated opinion from the April 2020 examiner concerning the Veteran’s TBI residuals. The examiner would not comment on whether the March 2016 VA examination and subsequent diagnosis of TBI was incorrect for ethical reasons. The examiner noted private treatment records from Dr. A.H., a neurologist, that state Dr. A.H. had evaluated the Veteran in September 2003 and November 2014, and both evaluations were negative for any TBI or headache condition. Even further, the Veteran’s private treatment records associated with the file after the April 2020 VA examination showed that he has long standing prescriptions for phentermine, Cialis, and Xanax, all of which include headaches as well-known side effects. He also has post-service comorbidities for headaches – including sinusitis associated with congestion. Resultantly, the VA examiner stated that her April 2020 opinion was unchanged – the Veteran’s head injury during service did not meet the criteria to be considered a TBI and, therefore, he has no residuals of a TBI. In December 2020, the Veteran provided a private opinion from a neurologist, Dr. D.T. After an in-person examination, Dr. D.T.’s impression was that the Veteran had a head injury with loss of consciousness, “[h]e had a remote severe head injury in 1963 with subsequent cognitive issues, headaches.” He also observed that the Veteran showed memory problems but noted that the Veteran’s B12 levels should be checked. Finally, he stated that the Veteran “may have had seizures for many years, undiagnosed.” The Board gives this private treatment record and any opinion from Dr. D.T. low probative value. This record reflects that the Veteran was recommended to visit Dr. D.T. by Dr. S.Y., and there is no indication that Dr. D.T. reviewed any of the Veteran’s medical history prior to this examination. This report is based on the Veteran’s own reported medical history, which has shown to be inconsistent with the medical evidence of record throughout the pendency of this appeal. While it is true that review of the claims file is not necessarily determinative or dispositive of the probative value of an opinion since, as an example, a Veteran may be a credible historian in recounting his relevant medical and other history, independent review of the file does have added significance when, as here, there are patent inconsistencies in the history the   Veteran has recounted and even in the recitation some of his doctors have provided in relation to what it actually indicated in the records of their treatment they have provided him. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). As such, the Board assigns this opinion low probative value, as it is not based on a true reporting of the Veteran’s medical history and, further, does not discuss why the Veteran’s other private and VA treatment records show that he actively denied headaches until 2014, and even after. The Veteran is not competent to determine whether he sustained a TBI during his service versus a head injury to some lesser extent or other sort. But even accepting that service connection for TBI since has been established, so on the presumption he did sustain that extent of head trauma during his service, as a layman, he still is not competent to ascribe any symptoms he has to a particular diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the long-term private treatment records from Dr. D, Dr. A.H., and Dr. S.Y, and the April 2020 and August 2020 VA opinions.   As such, the Board finds that entitlement to a compensable rating for a TBI or consequent residuals is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.