Citation Nr: 21011148 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-33 545 DATE: March 1, 2021 ORDER Entitlement to an increased 10 percent disability rating between April 19, 2011 and July 13, 2018 and an increased 40 percent rating since July 13, 2018 for residuals of an in-service traumatic brain injury (TBI) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disorders, for the period between September 10, 2013 and March 12, 2014, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether, between April 19, 2011 and July 13, 2018, the symptoms associated with the Veteran’s in-service TBI have manifested by level 1 impairment in memory, attention, concentration and executive functions, one of the facets of cognitive impairment. 2. The evidence is at least evenly balanced as to whether, since July 13, 2018, the symptoms associated with the Veteran’s in-service TBI have been manifested by level 2 impairment in memory, attention, concentration and executive functions, one of the facets of cognitive impairment. 3. Between September 10, 2013 and March 12, 2014, the evidence is at least evenly balanced as to whether service-connected disabilities prevented the Veteran from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Between April 19, 2011 and July 13, 2018, the criteria for a 10 percent disability rating for residuals of an in-service TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045. 2. Since July 13, 2018, the criteria for a 40 percent disability rating for residuals of an in-service TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8045. 3. Between September 10, 2013 and March 12, 2014, the criteria for a total disability rating based on individual unemployability due to service-connected disorders (TDIU) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to October 1993. This case comes to the Board from an August 2012 decision of the Agency of Original Jurisdiction (AOJ). In its decision, the Agency of Original Jurisdiction (AOJ) granted service-connected disability compensation for current residuals of an in-service traumatic brain injury (TBI), assigning an initial zero percent (noncompensable) rating. In January 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded this case to the AOJ for further development in March 2018. In April 2020, based on the Veteran’s statements that his psychiatric symptoms prevented him from working, the AOJ granted a total disability rating based on individual unemployability due to service-connected disorders (TDIU), effective March 12, 2014. When a ruling of the AOJ grants a TDIU for only part of the relevant appeal period, the issue of TDIU for the remainder of the period remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). In September 2020, the Board issued a decision and remand, increasing the disability rating assigned to the Veteran’s service-connected psychiatric disorder from 30 percent to 70 percent, effective April 17, 2013, and remanding the TDIU and TBI increased rating claims for a new medical opinion to help clarify inconsistencies in earlier VA examination reports. Rating Criteria for Residuals of TBI The AOJ assigned a zero percent (noncompensable) disability rating for the Veteran’s residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045. Under DC 8045, there are three main areas of dysfunction that may result from a TBI: cognitive, emotional/behavioral, and 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 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.” Id. Cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” (the Table). Id. The Table addresses 10 facets of traumatic brain injury related to cognitive impairment and subjective symptoms and provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, as well as a fifth level, the highest level of impairment, labeled total. These facets include memory, attention, concentration and executive function, judgment, social interaction, orientation, motor activity, visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other subjective symptoms. A level 0 impairment is consistent with a 0 percent disability rating, level 1 with a 10 percent disability rating, level 2 with a 40 percent disability rating, level 3 with a 70 percent disability rating, and the highest level (total) with a 100 percent disability rating. Id. When a veteran displays subjective symptoms, such symptoms should be applied to the Table, unless the symptoms may be evaluated under another diagnostic code. For example, if there are any emotional or behavioral symptoms that have been clinically diagnosed, such symptoms should be evaluated under the schedule of ratings for mental disorders listed in 38 C.F.R. § 4.130. Factual Background The Veteran was deployed to Southwest Asia during the 1991 Persian Gulf War. According to a March 2011 neuropsychiatric consultation note, he experienced “mild TBI” during an artillery barrage, during which he lost consciousness for about two minutes. In the following months, he began noticing lapses in his memory. In August 2011, the AOJ arranged a TBI examination. The examiner’s report describes a history of “difficulty with short-term memory since being exposed to the artillery barrage in early 1991. He states that he will often forget people’s names. He reports that he is frustrated and concerned because his memory problems have persisted despite treatment for his PTSD and depression.” According to the examiner, the Veteran had no difficulty with balance or ambulation. He had no speech or swallowing difficulties. And he denied difficulty with attention and concentration. The diagnoses were mild service-related traumatic brain injury and chronic headache syndrome. In assessing the various facets of cognitive impairment, the examiner indicated level 1 impairment of memory, attention, concentration and executive functions. In the examiner’s view, there was no impairment in the facets of judgment, social interaction, orientation, motor activity, visual spatial orientation, subjective symptoms, neurobehavioral effects, communication, or consciousness. Some of the medical records and examination reports include conflicting information about the extent to which the Veteran’s symptoms should be attributed to his TBI residuals or to his psychiatric disabilities (PTSD and depression). In September 2013, Dr. B., a physician affiliated with the VA Medical Center in San Diego, California wrote a letter indicating that the Veteran had been hospitalized at that facility with diagnoses of major depressive disorder and PTSD. According to the letter, “He continues with an increase in symptoms, and I am recommending further medical leave until October 15, 2013.” According to the physician, “It is likely the condition for which [the Veteran] was admitted was either precipitated or worsened by the cognitive difficulties associated with Traumatic Brain Injury (TBI) that [he] incurred while in the service. These cognitive symptoms include deficits in short term memory, organization skills, and multi-tasking which led to high levels of anxiety that significantly interfered with his work related duties.” In November 2013, the AOJ received a letter from another friend of the Veteran describing his psychiatric symptoms. Over the “last six to eight months” the Veteran’s friend wrote that the Veteran had experienced “a sharp decline in his overall mental health and stability.” The friend’s letter mentioned anxiety, depression, difficulty sleeping, and memory loss. The friend also wrote that the Veteran had discussed suicidal thoughts, quoting him as saying that he “doesn’t want to live anymore” and “wouldn’t mind being dead and just letting it end.” The friend’s letter indicated that “a spike in his suicidal thoughts that led to him formulating a suicidal plan” which was the reason for the psychiatric hospitalization. This information is consistent with the discharge summary describing the September 2013 hospitalization. Prior to his admission to the hospital, the summary explains, the Veteran had been feeling depressed for about two weeks. He said that he thought about committing suicide using a boxcutter. He told the treating psychiatrist that this was the worst depressive episode he had experienced since 2001. The immediate cause of his distress was feeling “overwhelmed and behind” at work. At the time, he was working in medical billing. He said he has “difficulty concentrating, work piles up, and this leads to anxiety which causes him to ‘freeze up like a deer in headlights’. He reports problems with organization and memory, stating that he is very forgetful. He will forget about conversations with people, peoples [sic] names, details of what they talked about, and things around the house.” A VA psychiatrist examined the Veteran in February 2014. According to the examiner’s report, the diagnoses were PTSD, major depression, and cognitive disorder not otherwise specified. The examiner wrote that it was possible to distinguish the symptoms of the various diagnoses and that chronic anxiety, vigilance, nightmares, avoidance and intrusive thoughts were symptoms of PTSD. Suicidal ideation, chronic low mood, and difficulties with concentration and motivation were attributed to depression. Memory problems, the examiner indicated, were related to cognitive disorder. On the same day, the AOJ also arranged a TBI examination. The examiner’s report indicated level 1 impairment in memory, attention, concentration, and executive function. The examiner also wrote that, “He scored 30/30 on the Mini-Mental state examination today. He tells me that he last worked in September of 2013, when he was a workers compensation clerk for a private company. He tells me that he stopped working because of depression. It is the impression of this evaluator that the [Veteran’s] subjective cognitive complaint is related to psychological issues and not due to his previous mild TBI.” According to the examiner, there was no impairment in judgment, social interaction, orientation, motor activity, visual spatial orientation, or subjective symptoms. The report indicates a level 1 impairment in neurobehavioral effects, but the examiner indicated that “These symptoms [neurobehavioral effects] are unrelated to TBI.” There was no impairment in the facets of communication or consciousness. During his hearing testimony, the Veteran said that he struggled with suicidal ideation daily. At the time of the hearing, he was working from home, approximately four days per week for about six hours each day. His job consisted of helping to verify information for a Workers’ Compensation system. In August 2018, a psychiatrist submitted an opinion indicating that the Veterans’ depressive symptoms were secondary to his service-connected PTSD. The same psychiatrist completed an examination report in July 2018 indicating diagnoses of PTSD, traumatic brain injury (TBI), and mood disorder (depression). According to the examiner, the TBI was associated with dizziness, headaches, tinnitus, insomnia, and sensitivity to light. PTSD caused recurrent memories of trauma and intensified psychological distress when exposed to “triggers associated with the trauma.” The examiner wrote that suicidal ideation “is a symptom of depression (mood disorder) . . .” The examiner wrote that the Veteran’s difficulty adapting to stress was “mostly due to his psychiatric disorders.” At the time of the examination, the Veteran was still working as a placement coordinator for an insurance company concerning Workers’ Compensation claims. He was working part-time “because he is not able to work more due to PTSD issues.” The psychiatrist who examined the Veteran in July 2018 prepared a separate report concerning residuals of TBI. Unlike the earlier reports, this report indicated level 2 impairment in the area of memory, attention, concentration and executive functions; level 2 impairment in judgment; and level 2 impairment in subjective symptoms. When applying the criteria for a level 2 impairment in memory, attention, concentration and executive functions (“Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild cognitive impairment”), the examiner wrote that, “On the MOCA [memory test], he scored 23/30. He reported trouble with concentrating and misplacing things. He said, ‘every movie is new to me . . . I can watch a movie and see it again a month later and not remember anything.’” The July 2018 report also identified level 1 impairments in social interaction, orientation, motor activity, neurobehavioral effects, and communication. The examiner also identified headaches and erectile dysfunction as “subjective symptoms or mental, physical or neurological conditions attributable to a TBI.” When the examination questionnaire asked him to comment on the effect of TBI symptoms on the Veteran’s ability to work, the examiner wrote that, “Given the MOCA score, I expect his TBI symptoms to have a mild impact on occupational functioning. His headaches and cognitive deficits may interfere with occupational performance.” But in April 2020, the AOJ obtained another TBI examination report indicating much less severe symptoms. This report indicated a level 1 impairment in the facet of memory, attention, concentration and executive functions and no impairment in any of the other categories. The examiner wrote that, “current symptoms include memory loss that started in 1991. The symptoms have not improved and have been the same. The patient forgets conversations, tasks at work, dates and names. The [Veteran] reports he cannot remember what happened in a movie even though he watched it multiple times. The [Veteran] needs to write things down.” The examiner wrote that, “I do not agree with the TBI assessment from [the July 2018 examiner] regarding tinnitus. In my opinion the tinnitus is a separate medical condition from TBI.” The conflicting information between the July 2018 and April 2020 reports was the main reason the Board remanded the increased rating claim and the intertwined TDIU claim. As the Board explained, both examiners indicated the level of impairment only by marking boxes next to pre-printed text next to the corresponding levels of severity for the various facets of TBI. Thus, there was no explanation for the large change. Because it was uncertain whether one or both examiners were mistaken, or whether the severity of the Veteran’s symptoms had changed, the Board instructed the AOJ to obtain an appropriate opinion clarifying the inconsistency between the reports. The AOJ arranged a new examination and obtained a new TBI questionnaire and the requested clarifying opinion from the physician who had prepared the April 2020 report. According to the examiner, there was level 1 impairment in the facet of memory, attention, concentration, and executive functions and a level 1 impairment in the facet of social interaction. There were no impairments in the facets of judgment, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication, or consciousness. In the area of subjective symptoms, the examiner mentioned anxiety and depression. When asked to clarify the apparent conflicts in the earlier reports, the examiner wrote that the July 2018 report “in my opinion is not accurate and does not represent the [Veteran’s] TBI. The TBI literature shows that ongoing symptoms of cognitive and neurobehavior symptoms are more likely from the comorbid mental health condition rather than mild TBI.” Analysis – Increased Rating for TBI Under DC 8045, the Veteran’s current residuals of TBI should be assigned a rating corresponding to the facet of cognitive impairment which reflects the highest level of impairment. As the Board has observed, all of the examination reports have indicated at least level 1 impairment in the category of memory, attention, concentration, and executive functions. There is some evidence suggesting that this impairment should not be attributed to TBI, notably the February 2014 TBI examination report, in which the examiner wrote that the Veteran’s cognitive impairment, including his memory lapses, were “related to psychological issues and not due to his previous mild TBI.” But the greater weight of the evidence favors a finding that the memory lapses are aspects of the Veteran’s TBI. The psychologist who also examined him in February 2014 was asked to differentiate the symptoms attributable to PTSD, depression, and cognitive disorder not otherwise specified (TBI). The psychologist wrote that it was possible to distinguish the symptoms of the various diagnoses and that chronic anxiety, vigilance, nightmares, avoidance and intrusive thoughts were symptoms of PTSD. Suicidal ideation, chronic low mood, and difficulties with concentration and motivation were attributed to depression. Memory problems, according to the psychologist, were related to cognitive disorder. The letter from the physician who treated the Veteran during his September 2013 psychiatric hospitalization is consistent with this analysis. According to the letter, “the condition for which [the Veteran] was admitted was either precipitated or worsened by the cognitive difficulties associated with Traumatic Brain Injury (TBI) that [he] incurred while in the service. These cognitive symptoms include deficits in short term memory, organization skills, and multi-tasking which led to high levels of anxiety that significantly interfered with his work related duties.” Based on this evidence, and pursuant to its duty to resolve reasonable doubt in the Veteran’s favor, see 38 C.F.R. § 4.3, the Board finds that the impairment in the facet of memory, attention, concentration, and executive functions – identified as a producing a level 1 impairment in the August 2011, February 2014, April 2020, and November 2020 reports and level 2 impairment in the July 2018 report – is related to his in-service TBI event. Consistent with this finding, the Veteran is eligible for at least a 10 percent rating under DC 8045 since April 19, 2011 – the day the AOJ received his TBI claim. Whether the Veteran’s symptoms more closely approximated the criteria for a rating of 10 percent (level 1 impairment) or 40 percent (level 2 impairment) depends on how the Board resolves the conflicts between the July 2018 report and the recent November 2020 clarifying opinion. The most recent opinion criticized the July 2018 report for attributing symptoms of the Veteran’s service-connected mental health condition to his TBI. With respect to most of the facets of cognitive impairment (judgment, social interaction, communication, etc.) the November 2020 opinion is persuasive and consistent with the other evidence. On this issue, it is significant that the other TBI examination reports consistently indicated that there were no impairments categories other than memory, attention, concentration and executive functions. But with respect to the Veteran’s memory lapses, the November 2020 opinion is less convincing. Under DC 8045, level 1 impairment in this category corresponds to “mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing.” 38 C.F.R. § 4.124A, DC 8045. The criteria for level 2 impairment reflects “Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.” Id. According to the July 2018 report, the examiner administered a test of memory and indicated that “he scored 23/30.” The examiner concluded that, “Given the MOCA [test] score, I expect his TBI symptoms to have a mild impact on occupational functioning.” Although the November 2020 opinion contains general statements of disagreement with the July 2018 report, there was no attempt to address this evidence of objective evidence on testing of mild impairment of memory. Of course, the November 2020 examination questionnaire indicated level 1 impairment in this category. But in explaining this assessment, the examiner only noted “as above” – i.e., that the examiner continued to concur with the findings in previous reports. The April 2020 questionnaire from the same examiner also includes the same cursory note (“as above”) to justify an assessment of level 1 impairment in the facet of memory, attention, concentration, and executive functions. Because the July 2018 TBI questionnaire cites objective evidence on testing of mild impairment of memory, the Board finds that, as of the date of the report, the Veteran is eligible for an increased 40 percent rating (corresponding to level 2 impairment in the highest facet of cognitive impairment indicated by the medical evidence) for residuals of TBI. Before July 13, 2018 (the date of the examination), it was not factually ascertainable that the Veteran’s symptoms met the criteria for a 40 percent rating for residuals of TBI. The most recent prior example of objective evidence on testing of impairment of memory comes from the February 2014 TBI examination questionnaire. To explain the assessment of level 1 impairment in memory, the February 2014 examiner wrote that, “[The Veteran] scored 30/30 on the Mini-Mental state examination today.” In other words, prior to July 13, 2018, there were complaints of mild loss of memory without objective evidence on testing – the criteria for level 1 impairment. Note (1) to 38 C.F.R. § 4.124A, DC 8045 indicates that it may be appropriate to evaluate manifestations of a comorbid mental, neurological, or other physical disorder separately under another diagnostic code. But the Board may not “assign more than one evaluation based on the same manifestations.” Id. For the period since July 23, 2018, the AOJ assigned a separate 50 percent disability rating for the Veteran’s headaches under DC 8100. This is the highest schedular rating for headaches authorized by the Rating Schedule and it appears that the AOJ granted this rating based on the July 2018 examiner’s statement that the Veteran’s headaches were “prostrating 1-2 times per week” and “may interfere with occupational performance.” The Board has considered the possibility of assigning moving forward the effective date of a separate rating under DC 8100. But there does not appear to be evidence of prostrating headaches before July 2018. The August 2011 TBI examiner noted chronic headaches and, at the videoconference hearing, the Veteran testified he had a headache approximately every day. However, a 10 percent rating for residuals of TBI under the Table is appropriate when subjective symptoms include “daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light.” 38 C.F.R. § 4.124A, DC 8045. Without evidence of prostrating headaches, the Board finds that a separate compensable rating under DC 8100 prior to July 23, 2018 would “assign more than one evaluation based on the same manifestations [of TBI]” which is prohibited by Note (1) to DC 8045. For the same reason, even if the tinnitus mentioned in the medical evidence is related to TBI, a suggestion disputed by the April 2020 examiner, tinnitus is already contemplated by a 10 percent rating assigned under DC 8045. The Veteran has been assigned a separate zero percent (noncompensable) rating for erectile dysfunction under 38 C.F.R. § 4.115B, DC 7599-7522 as well as special monthly compensation for the loss of use of a creative organ under 38 C.F.R. § 3.350(a). Although there is some evidence that this condition may be related to TBI, the July 2018 male reproductive examination report indicates that there was no penile deformity, which is required for a higher 20 percent rating under DC 7522. For these reasons, the Board will grant an increased 10 percent rating for residuals of TBI for the period between April 19, 2011 and July 13, 2018 and an increased rating of 40 percent for the period since July 13, 2018. To the extent the Veteran seeks an even higher rating for residuals of TBI, his claim is denied. TDIU prior to March 12, 2014 VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran’s earned annual income is below the poverty threshold and in other limited circumstances. Id. For the period between April 19, 2011 and March 12, 2014, the Veteran had three service-connected disabilities: (1) posttraumatic stress disorder with mood disorder (rated as 30 percent disabling before April 17, 2013 and as 70 percent disabling since then); (2) residuals of traumatic brain injury (10 percent disabling); (3) residuals of an in-service fracture of the right fifth metacarpal (zero percent disabling). These ratings satisfy the schedular criteria of 38 C.F.R. § 4.16(a) for the period after April 17, 2013, but not before. In February 2014, the Veteran submitted his written application seeking a TDIU rating. According to this document, the disabilities which prevented him from working, were PTSD, depression, and anxiety. The application identifies September 10, 2013 as the date he last worked full-time and also as the date when he first became too disabled to work. The application further indicates that the amount of the Veteran’s earned income for the previous 12 months was $30,000 but that this money was paid to him before his last day of work (September 9, 2013). The Veteran submitted information about his earnings from previous years compiled by the Social Security Administration (SSA), which is consistent with the information in his application. The evidence is at least evenly balanced as to whether symptoms associated with his service-connected psychiatric disorder and TBI prevented the Veteran from securing and following a substantially gainful occupation between September 10, 2013 and March 12, 2014. In making this finding, the Board assigns significant weight to the records of the Veteran’s psychiatric hospitalization in September 2013. As noted, the discharge summary describing that hospitalization indicates that, before going to the hospital, the Veteran was feeling depressed for about two weeks and was thinking about committing suicide using a boxcutter. He “overwhelmed and behind” and felt unable to do his job because of his suicidal ideation and problems with concentration, organization, and memory. According to the relevant reports, the Veteran was still not working at the time of his psychiatric and TBI examinations in February 2014, near the end of the period relevant to the TDIU claim in this appeal (April 19, 2011 to March 12, 2014). Given the symptoms he described, the nature of his disabilities, and the corroboration of his statements contained in the hospital records and in the subsequent letter from his treating physician, the Veteran is eligible for a TDIU rating between September 10, 2013 and March 12, 2014. The evidence is against a finding that the Veteran is entitled to a TDIU rating before then. According to his application, the Veteran performed full-time work and, as a result, received earned income in excess of the poverty threshold before September 10, 2013. Moreover, according to his own statement in the same application, September 10, 2013 was the date when he first became too disabled to work. For these reasons, a TDIU rating is granted for the period between September 10,   2013 and March 12, 2014. For the period before September 10, 2013 the claim for a TDIU rating is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.