Citation Nr: 21009668 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-30 805 DATE: February 23, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for headaches, residual of traumatic brain injury (TBI), is denied. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran experiences any TBI residuals other than her subjective reports of headaches, as well as a finding that her headaches have resulted in characteristic prostrating attacks occurring on an average once a month over the last several months or a higher level of impairment at any point in the appeal period. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for headaches, residual of TBI, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that, in pertinent part, granted service connection for headaches as a residual of TBI with an initial noncompensable rating, effective July 9, 2009. In October 2013, the Veteran perfected an appeal of the initial rating assigned for the disability. The Veteran appeared at a hearing before the undersigned in March 2017. A transcript of the hearing is of record. In November 2017, the Board remanded the Veteran’s appeal so she could be scheduled for a new examination, as her March 2017 testimony raised the possibility of increased severity of her disability. The Agency of Original Jurisdiction (AOJ) scheduled the Veteran for a new examination in February 2019, as directed. There is no indication the February 2019 VA examination reports are inadequate for rating purposes, as the examiner provided findings consistent with the applicable rating criteria for TBI and headaches after consideration of the evidence of record and an in-person examination of the Veteran. Thus, there has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). After the February 2019 VA examination, the AOJ issued a rating decision increasing the initial rating for the Veteran’s disability to 10 percent, effective July 9, 2009, before returning the matter to the Board for further appellate consideration. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Residuals of TBI are 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. 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 includes a table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” [hereinafter “Table”], which addresses 10 facets of TBI. 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 as “total.” A level 0 impairment is consistent with a 0 percent disability rating, level 1 with 10 percent rating, level 2 with 40 percent, level 3 with 70 percent disability rating, and the highest level (“total”) with a 100 percent disability rating. Id. The overall evaluation assigned is based upon the highest level of severity for any facet. 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. Subjective symptoms that are residuals of a TBI, whether they are part of cognitive impairment, should be evaluated under the subjective symptoms facet; however, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, even if that diagnosis is based on subjective symptoms, rather than under the Table. Id. Note 1 associated with Diagnostic Code 8045 states that there may be an overlap of manifestations of conditions evaluated under the Table with manifestations of a comorbid mental, neurologic, or other physical disorder that can be separately evaluated under another Diagnostic Code. In such cases, the rater is not to assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, the rater should 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, a separate evaluation for each condition should be assigned. Id. Note 2 provides that 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. Id. Note 3 states that “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. Id. According to 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. Id. The Veteran has been provided two VA examinations during the appeal period. Her most recent examiner in February 2019 reported normal functioning under all 10 facets of the Table but for her subjective reports of headaches. The February 2019 VA examiner’s report is consistent with the report of the Veteran’s previous March 2010 VA examiner, who reported the Veteran experiences no residuals of TBI other than headaches. The VA examiners’ reports are consistent with the Veteran’s treatment records, which do not document any residuals of TBI other than headaches. A November 2016 magnetic resonance imaging (MRI) of the Veteran’s brain was noted to be “unremarkable” and she has reported she does not currently receive treatment for any TBI related symptoms to include headaches. The Board also acknowledges the Veteran has claimed entitlement to service connection for an acquired psychiatric disorder in the past, but this claim was denied by a now final March 2014 rating decision with no emotional/behavioral dysfunction being noted during TBI examinations. As a result, a rating using the facets outlined in the Table under Diagnostic Code 8045 is not warranted since the preponderance of evidence establishes that the only residual symptom of TBI the Veteran experiences is headaches, which are rated under Diagnostic Code 8100. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (noting VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, even if that diagnosis is based on subjective symptoms, rather than under the Table). A rating in excess of 10 percent under Diagnostic Code 8100 requires a finding of migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. 38 C.F.R. § 4.124a. The highest schedular rating available, 50 percent, is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define “prostrating,” and the courts have not undertaken to define “prostrating” for purposes of Diagnostic Code 8100. See Fenderson, 12 Vet. App. at 119. According to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” The Court has determined “productive of severe economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Yet, “severe economic inadaptability” remains undefined, but nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. at 445-46. Regarding headaches, the Veteran’s initial March 2010 VA examiner reported: The Veteran states that now she has about one headache a week which is in the forehead and lasts anywhere from a few hours to a day. She takes no medication for it and it does not incapacitate her and she is able to continue doing whatever she is doing. The Board finds this evidence weighs heavily against a finding that the Veteran experiences incapacitating episodes as a result of headaches, which is required for the assignment of a higher rating under Diagnostic Code 8100, because the Veteran specifically reported that her headaches were not severe enough to prevent her from doing whatever she is doing. The Veteran’s February 2019 VA examiner reported similar findings and explicitly noted the Veteran’s headaches do not result in “incapacitating episodes” when completing the applicable disability benefits questionnaire. Further, the Veteran’s testimony during the March 2017 hearing before the undersigned does not suggest the presence of headaches resulting in “incapacitating episodes” in this case. There is no indication from treatment records that the Veteran experiences headaches with greater severity than that acknowledge by her VA examiners. As such, the Board finds the preponderance of evidence is against a finding that the Veteran’s headaches have resulted in characteristic prostrating attacks occurring on an average once a month over the last several months or a higher level of impairment at any point in the appeal period. In sum, the Board finds the preponderance of evidence is against a finding that the Veteran experiences any TBI residuals other than her subjective reports of headaches, as well as a finding that her headaches have resulted in characteristic prostrating attacks occurring on an average once a month over the last several months or a higher level of impairment at any point in the appeal period. The Board acknowledges the AOJ has assigned a 10 percent rating for headaches despite the fact that it does not appear the Veteran has characteristic prostrating attacks due to headaches even though Diagnostic Code 8100 requires prostrating attacks for a compensable rating; however, the Board will not disturb this favorable finding. Yet, the Board finds a rating in excess of 10 percent is not warranted at any point in the appeal period, and, to that extent, the Veteran’s appeal is denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.