Citation Nr: 21009987 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-46 884 DATE: February 23, 2021 ORDER A rating in excess of 30 percent for residuals of traumatic brain injury (TBI) is denied. A total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. A severity level of 1 is the highest level of any facet of dysfunction caused by the Veteran’s TBI. 2. The Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for TBI have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8045. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1980 to May 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified via videoconference before the undersigned Veteran’s Law Judge. A hearing transcript is associated with the record. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 40 percent for residuals of traumatic brain injury (TBI) 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 (psychiatric), and physical. Each of these areas of dysfunction may each require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045. However, the instructions associated with this diagnostic criteria establish that these evaluations be performed in a certain order. Namely, where there is a diagnosis of an acquired psychiatric disorder associated with a TBI, a veteran's symptoms should be captured to the maximum extent possible under 38 C.F.R. § 4.130 (addressing general psychiatric disorders). Similarly, all physical impairments associated with a TBI should first be addressed under the diagnostic code specific to the impairment. All remaining unaddressed symptoms are then addressed under the table labeled Facets of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified as set forth in 38 C.F.R. § 4.124a, DC 8045. In this case, the Veteran is service connected for an acquired psychiatric disorder with a 50 percent rating under 38 C.F.R. § 4.130, DC 9434 (addressing major depressive disorder), as well as a separate 30 percent rating for residuals of a TBI, under 38 C.F.R. § 4.124a, DC 8045. The Veteran has not contested the rating he receives for his acquired psychiatric disorder. As such, the only question for the Board to consider is whether the Veteran experiences cognitive disorders that are not already addressed in his 50 percent rating under DC 9434, that may be rated in excess of 30 percent under DC 8045. 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.” The table accompanying DC 8045, 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 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. Based on the evidence of record, a rating in excess of 30 percent is not warranted for cognitive impairment under DC 8045. In making this determination, the Veteran has undergone two VA compensation and pension TBI examinations during this appeal period, one in October 2015 and one in March 2020. With respect to memory, attention, concentration, and executive functions, on both VA compensation and pension examinations the Veteran was noted to have complaint of mild loss of memory, attention, concentration, or executive function, but without objective evidence on testing, which equates to level 1 impairment under Diagnostic Code 8045. The October 2015 VA examiner noted that the claimant reports mild short-term memory loss most pronounced the past 4-5 years with questionable time onset of short-term memory loss. The March 2020 VA examiner noted that the Veteran often forgets simple tasks and loses common household items. In January 2018 at a VA appointment the Veteran reported short term memory problems. However, his overall mental status examinations were fine. The Board finds that the Veteran’s level of impairment more closely approximates a 2, representing objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Board does not find that his condition more closely approximates moderate impairment. Although there is some objective evidence on testing of difficulties with memory and processing, the Board finds that objective testing indicates they are no more than mild. With respect to subjective symptoms, the examiners in October 2015 and March 2020 found that the subjective symptoms do not interfere with work; instrumental activities of daily living, work, family, or other close relationships including headaches and anxiety. They opined a severity level of one based upon the Veteran’s headaches. This is consistent with the Veteran reporting complaints of headaches throughout the record and the March 2020 examiner opining that the Veteran’s headaches do not interfere with his ability to function at work. Additionally, with respect to neurobehavioral effects, the 2015 VA compensation and pension examiner noted that the Veteran problems with impulsivity, irritability at times, and impaired awareness of his disability. The examiner noted a level one severity level stating one or more neurobehavioral effects that do not interfere with workplace or social interaction. The March 2020 VA examiner noted no neurobehavioral effects. The Veteran did not some interference with work and social settings, but not to the level indicative of a greater level of severity. The Veteran’s speech was clear, normal in volume, and the correct pace during VA treatment appointments in May and July 2017. The Board also notes that the Veteran was able to communicate intelligibly at his January 2020 Board hearing and VA treatment records do not suggests communication problems at medical appointments. Based on the forgoing, the Board finds the Veteran’s comprehension or expression is at most only occasionally impaired, warrants a severity level of no more than 1. Finally, during the period on appeal the Veteran has never been found to be in an altered state of consciousness, minimally responsive state, or coma. The evaluation assigned for cognitive impairment and other residuals of traumatic brain injury not otherwise classified is based upon the highest level of severity for any facet as determined by examination. Only one disability evaluation is assigned for all the applicable facets. As discussed above, the highest level of severity for any facet is 1. Overall, the Board finds that no facet could be considered in excess of a “2” on the table. Indeed, it is likely that some of symptoms that were evaluated by the RO were already captured in the 50 percent rating the Veteran receives under DC 9434. Therefore, a rating in excess of 30 percent is not warranted. In considering the appropriate disability rating for the Veteran's TBI residuals, the Board has also considered the statements from the Veteran that his symptoms are worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his TBI residuals according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify ). On the other hand, such competent evidence concerning the nature and extent of the Veteran's TBI residuals has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of these examiners is ot greater probative value. 2. Entitlement to TDIU The Veteran has argued that his service-connected disabilities cause near daily headaches, which preclude his employment. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Since June 3, 2015, the Veteran has been rated at 30 percent for TBI, 50 percent for unspecified depressive disorder, 10 percent for right temple and scalp scar, 10 percent for tinnitus, and noncompensable for left ear hearing loss, for a combined rating of 70 percent. Therefore, the Veteran meets the schedular rating criteria for TDIU. The central inquiry is “whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The evidence reflects that the Veteran’s most recent position where he was gainfully employed was at Georgia Pacific as a paper machine operator for approximately 18 years. He lost his job in 2016 due to attendance issues. At his January 2020 Board hearing the Veteran testified that he has headaches at least two times per week, which are debilitating requiring him to lie down in the dark. Thus, resulting in him losing his job. The Veteran’s VA treatment records are consistent with these complaints. The Board acknowledges the October 2015 and March 2020 headache VA examinations that state that the Veteran has headaches less than two times per month. However, these are found to be less probative as they are inconsistent with the years of VA treatment records that reflect frequent debilitating headaches going back as far as December 2006. Additionally, the VA treatment records are from treating source health providers that show the Veteran’s medical history over time rather than the VA examinations that just show one current point in time. The Veteran’s frequency of debilitating headaches due to his TBI is the primary reason he cannot follow and secure gainful employment. As such, the Board finds that giving the Veteran the benefit of the doubt, TDIU should be granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel