Citation Nr: 21012774 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-13 518 DATE: March 5, 2021 ORDER Entitlement to an effective date of June 10, 1999, but no earlier, for a 30 percent rating for a bilateral ear disability manifested by hearing loss and dizziness is granted. Entitlement to an effective date prior to December 2, 2014, for the grant of service connection for traumatic brain injury (TBI), to include on the basis of clear and unmistakable error (CUE), is denied. Entitlement to an initial rating in excess of 10 percent for TBI prior to April 28, 2016, is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. FINDINGS OF FACT 1. Although VA adjudicators erred in the April 1998 rating decision by not considering VA treatment records showing complaints of hearing loss and dizziness, the error was not outcome-determinative. 2. Following issuance of the final April 1998 rating decision, the Veteran filed a request to reopen his claim for bilateral hearing loss and dizziness on June 10, 1999, which was denied in November 1999. 3. Within one year of the November 1999 decision, new and material evidence relating to the claim for service connection for hearing loss and dizziness was received. 4. Resolving reasonable doubt in the Veteran’s favor, his bilateral ear disability was manifested by hearing impairment and dizziness/vertigo beginning June 10, 1999. 5. The record contains no informal claim, formal claim, or any written intent to file a claim for TBI prior to December 2, 2014. 6. The Regional Office (RO) did not commit CUE in the April 1998 and November 1999 rating decisions by failing to grant service connection for TBI. 7. Prior to April 28, 2016, the Veteran’s TBI residuals were manifested by, at most, level 1 facet of impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date of June 10, 1999, but no earlier, for a 30 percent rating for a bilateral ear disability manifested by hearing impairment and dizziness are met. 38 U.S.C. §§ 1155, 5110, 5107(b) (1994); 38 C.F.R. §§ 3.156(b), 3.400, 4.7, 4.87, Diagnostic Code 6205 (1999). 2. The criteria for an effective date prior to December 2, 2014, for the grant of service connection for TBI are not met. 38 U.S.C. § 5110 (2018); 38 C.F.R. § 3.400 (2019). 3. For the period prior to April 28, 2016, the criteria for an initial rating in excess of 10 percent for residuals of TBI are not met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1966 to April 1969 in the United States Marine Corps (USMC). He is a recipient of the Purple Heart medal. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and June 2015 rating decisions issued by a RO of the Department of Veterans Affairs (VA). In March 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2018, the Board remanded the issues of entitlement to an effective date prior to March 26, 2008, for the assignment of a 30 percent rating for bilateral hearing loss and vertigo; entitlement to an effective date prior to December 2, 2014, for the grant of service connection for residuals of TBI; and entitlement to an initial rating in excess of 30 percent for migraine headaches. Those issues have since been returned to the Board. In a November 2018 decision, the Board denied a rating in excess of 10 percent for residuals of TBI prior to April 28, 2016. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated that portion of the Board’s decision and remanded the matter back to the Board for additional consideration and readjudication. Effective Date – Bilateral Ear Disability Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the Veteran’s service treatment records indicated that he was hit by an enemy explosive device in May 1967. He sustained shell fragment wounds to his right forearm and left ear. The wounds were debrided and closed. Nine days later, the sutures were removed, and he was determined ready for duty 15 days after the incident. His hospital discharge summary indicated that a physical examination was entirely normal except for two, 2-centimeter (cm.) wounds on his right forearm, which were clean. At his March 1969 separation examination, his head, ears, neurologic system, and psychiatric evaluation were normal. Whisper voice testing in each ear was 15/15, i.e., normal. In 1996, the Veteran’s wife submitted a letter requesting help for the Veteran. She stated that he had constant ringing in his ears and problems with his equilibrium. She stated that he had filled out paperwork at the VA hospital in Reno, Nevada, to obtain help, but that he was told they lost his paperwork. She stated that he was so disgusted that he just left. In February 1998, the Veteran submitted a claim for service connection, stating that his hearing loss was worse and causing tinnitus, and that the ringing in his ears caused a lot of social problems. In an April 1998 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus. The RO noted that there was no treatment for hearing loss or tinnitus during service, and that no medical evidence had been submitted showing that the Veteran had a current bilateral hearing loss disability or tinnitus. A copy of the April 1998 decision was sent to the Veteran at his address of record. On June 10, 1999, the Veteran filed a claim for service connection for the following: 1) shell fragment wound of the right forearm, to include scar and arthritis at the right elbow; 2) shell fragment wound of the back of the neck, to include scarring, arthritis, and damage to the ear; 3) tinnitus, to include loss of balance; 4) hearing loss; and 5) posttraumatic stress disorder (PTSD). A September 1999 VA joints examination noted that the Veteran had complaints of tinnitus and was scheduled to have an audiogram done in February. The examiner indicated that there was no obvious wound to the left ear. There was some slight to moderate cerumen or ear wax. There was positive Romberg with some moderate waving during that examination. In November 1999, the RO granted service connection for shell fragment wounds with residual scars of the right forearm and denied the remaining claims. The RO indicated that the claim for hearing loss was denied because new and material evidence had not been submitted. The Veteran did not appeal that decision. On March 26, 2008, the Veteran filed a request to reopen the claim for service for hearing loss. In a March 2009 rating decision, the RO granted service connection and assigned an initial noncompensable rating for a bilateral hearing loss disability effective March 26, 2008. In congressional correspondence received in February 2010, the Veteran indicated that he disagreed with the effective date and believed the award should have been made effective from when his problem started. The Board construes that correspondence as a notice of disagreement (NOD) with the effective date assigned. The Veteran also appealed the initial rating assigned. In a February 2015 decision, the Board granted an initial rating of 30 percent for the Veteran’s bilateral ear disability manifested by hearing loss and dizziness. In a March 2015 rating decision, the RO implemented that decision by assigning an initial 30 percent rating effective March 26, 2008. The Veteran filed a NOD with the effective date assigned for the 30 percent rating. In this case, the Veteran’s attorney argues CUE in the April 1998 and November 1999 rating decisions. It is argued that the adjudicators failed to consider the lay statements from the Veteran and his wife regarding ringing in his ears, problems with equilibrium, and worsening hearing loss. It is also argued that the adjudicators failed to consider VA treatment records that were constructively in their possession. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes that the Bell decision was issued prior to the April 1998 and November 1999 rating decisions and is therefore applicable in this case. The following VA treatment records were received after the April 1998 and November 1999 rating decisions, but were constructively in VA’s possession at the time of those decisions: A December 1979 VA treatment record indicated that the Veteran complained of a “lightheaded, dizzy sensation” over the past 2 ½ years. It was noted that the dizziness was associated with a high-pitched ringing in the ears and hearing loss. It was also noted that the symptoms were being worked up by a private physician. A May 16, 1985 VA treatment record noted that the Veteran was seen for evaluation of headaches and dizziness. A May 11, 1999 VA treatment record indicated that the Veteran complained of equilibrium problems for several years and felt that the problem was getting worse. He requested an ear, nose, and throat consultation. A May 24, 1999 VA treatment record noted that the Veteran wanted to have his ears evaluated for tinnitus and hearing loss. He reported that he was exposed to explosions during service. The assessment was “tinnitus of both ears … s/p Vietnam 1975.” He was referred to the ear, nose, and throat clinic. A February 4, 2000 VA audiogram showed that the Veteran’s hearing acuity was above 40 decibels in both ears at 4000 Hertz. Therefore, that record established that he met the threshold for a hearing loss disability under 38 C.F.R. § 3.385 (1999). In addition, he complained of tinnitus and disequilibrium with heights. Initially, the Board notes that the February 2000 VA treatment record was in constructive possession of VA adjudicators within one year of the November 1999 decision. The Board finds that the February 2000 treatment record, showing the presence of a hearing loss disability, was new and material evidence. See 38 C.F.R. § 3.156(a) (1999). Under the provisions of 38 C.F.R. § 3.156(b) (1999), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. VA is required to provide a “directly responsive” determination as to whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Mitchell v. McDonald, 27 Vet. App. 431, 437 (2015); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Mitchell, 27 Vet. App. at 437-38. Because new and material evidence was received prior to expiration of the appeal period of the November 1999 rating decision, the June 10, 1999 request to reopen the claim for service connection for bilateral hearing loss remained pending. Furthermore, resolving reasonable doubt in his favor, entitlement to service connection arose on or prior to that date. Therefore, an effective date of at least June 10, 1999, is warranted for service connection for the Veteran’s bilateral ear disability. Regarding the April 1998 rating decision, the Veteran did not appeal that decision and new and material evidence was not received within the one-year appeal period. Therefore, that decision is a final decision. In order for a Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior decision on the claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Court has further stated that CUE is a very specific and a rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313. As noted above, the Veteran’s attorney argues CUE in the April 1998 rating decision. Specifically, it is argued that VA adjudicators failed to properly consider lay statements from the Veteran and his wife regarding ringing in his ears, problems with equilibrium, and worsening hearing loss. That argument is essentially a disagreement of how the evidence weighed, which does not rise to the level of CUE. It is also argued that VA adjudicators failed to consider VA treatment records that were constructively in their possession. The Board notes that the RO did not consider the December 1979 VA treatment record, which indicated that the Veteran complained of a “lightheaded, dizzy sensation” over the past 2 ½ years, and dizziness associated with a high-pitched ringing in the ears and hearing loss. The RO also did not consider the May 1985 treatment record, which noted that he was seen for evaluation of headaches and dizziness. Inasmuch, the RO erred in determining that no medical evidence had been submitted showing bilateral hearing loss. While that evidence was not in the claims file at the time of the April 1998 decision, it was within VA’s constructive possession. See Bell, supra. The question remains whether a different conclusion would have been reached, to which reasonable minds could not differ, but for that error. The Board notes that the Veteran’s service treatment records did not show any evidence of hearing loss and that the December 1979 VA treatment record noted a 2 ½ year history of dizziness associated with hearing loss, i.e., beginning in 1978. The December 1979 and the May 1985 treatment records did not indicate that the Veteran’s symptoms were incurred in or related to service. Because there was evidence for and against the claim for service connection at the time of the April 1998 rating decision, the Board finds that reasonable minds could have reached different conclusions. Therefore, the Board finds that the error was not outcome determinative and did not constitute CUE. The Board has thoroughly reviewed the evidence of record between the April 1998 final decision, and June 10, 1999, to determine whether any evidence could serve as an informal claim in order to entitle the Veteran to an earlier effective date for a bilateral ear disability. The Board notes the argument that the Veteran has had symptoms of hearing loss and dizziness since service and medical treatment for those conditions since at least 1979. It is also noted that May 1999 VA treatment records noted complaints of dizziness and hearing loss. However, the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). In this case, no document submitted during that time period indicates an intent to pursue a claim of service connection for a bilateral ear disability, to include hearing loss and dizziness. Therefore, based on the foregoing, an effective date of June 10, 1999, is the earliest possible effective date with regard to the grant of service connection for a bilateral ear disability. Next, the Board will address whether a 30 percent rating is warranted for the bilateral ear disability effective June 10, 1999. In a February 2015 decision, the Board determined that a 30 percent rating was warranted for the Veteran’s bilateral ear disability by evaluating his symptoms using analogous rating criteria for Meniere’s syndrome under 38 C.F.R. § 4.87, Diagnostic Code 6205. The relevant rating criteria, which have remained unchanged since June 10, 1999, provide a 30 percent rating for hearing impairment with vertigo less than once a month, with or without tinnitus. In this case, resolving reasonable doubt in the Veterans’ favor, the Board finds that the lay and medical evidence indicates that a 30 percent rating for the bilateral ear disability is warranted beginning June 10, 1999. The lay and medical evidence indicates that he has had hearing impairment with vertigo less than once month. 38 C.F.R. § 4.87, Diagnostic Code 6205 (1999). Accordingly, an effective date of June 10, 1999, but no earlier, for a 30 percent rating for a bilateral ear disability manifested by hearing impairment and dizziness is warranted. Effective Date – TBI During a December 2, 2014, Board hearing, the Veteran’s attorney argued that the Veteran’s cluster of symptoms were residuals of TBI. Later that month in December 2014, she filed a claim for service connection for hearing loss, to include disequilibrium and TBI. As discussed above, service connection for a bilateral ear disability, to include hearing impairment and dizziness, has been granted. In a June 2015 rating decision, the RO also granted service connection and assigned an initial 10 percent rating for TBI effective December 2, 2014. The Veteran appealed, seeking an effective date prior to December 2, 2014. The Veteran’s attorney argues CUE in the prior April 1998 and November 1999 rating decisions, which failed to grant service connection for TBI. It is argued that the RO failed to provide a VA examination considering the Veteran’s in-service injury and reported symptoms. It is also argued that the RO failed to consider the September 1999 VA examination, which noted tinnitus, dizziness, and positive Romberg test during the examination. It is further argued that service connection should be granted back to 1996, the date of the Veteran’s wife’s letter. Alternatively, in an October 2020 letter, the Veteran’s attorney argued that the effective date for TBI should be in May 2010, when the Veteran was awarded service connection for PTSD on the grounds that he thought his TBI symptoms were due to PTSD. She noted that a Veteran is not competent to provide his own medical diagnosis and essentially argued that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Initially, the Board must determine whether a claim for TBI was reasonably raised by the record prior to December 2, 2014. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This case involves dates prior to March 24, 2015, so the regulations in place prior to that date are applicable and are referred to below. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). At the outset, the Board notes that the mere existence of medical evidence of a disorder does not establish an intent to seek service connection, or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a), 3.155(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Although information contained in treatment records may constitute an informal claim, this is only appropriate where service connection has already been established, or where a claim was previously denied due to the disability not rising to a compensable level. 38 C.F.R. § 3.157(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006). Neither of those circumstances was present in this case. In other words, the effective date of service connection is not assigned based on the date the claimant asserts that the disability appeared, or on the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service. Rather, the effective date is assigned based on the date that the application or claim upon which service connection was eventually granted was received by VA. See 38 C.F.R. § 3.400; Lalonde, 12 Vet. App. at 382-83. If VA fails to adjudicate a claim - whether formal or informal - for VA benefits and to notify the claimant of the denial, that claim remains pending until it is finally adjudicated. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). In this case, the first communication from the Veteran or his representative, identifying a claim for service connection for TBI was on December 2, 2014. The record does not show any claim for TBI prior to December 2, 2014. Although correspondence was received in 1996, 1998, and 1999, identifying various symptoms that were later determined to be related to his in-service injury, there was no correspondence received that could be reasonably construed as a claim for service connection for TBI. Therefore, the Board finds that the April 1998 and November 1999 rating decision did not contain CUE by failing to grant service connection for TBI. Regarding the Veteran’s argument that VA should have provided a VA examination for TBI prior to the April 1998 and November 1999 rating decisions, the Board notes that a failure in VA’s duty to assist by providing an adequate examination does not constitute CUE. See 38 C.F.R. § 3.105(a)(vi). Next, the Veteran’s attorney argues that the Veteran’s claim for service connection for PTSD, which was filed in May 2010, should have encompassed TBI based on the evidence of record under Clemons. In a July 2010 rating decision, the RO granted service connection for PTSD. A review of the Veteran’s description of the claim, reported symptoms, and the other information of record at that time does not indicate that the scope of the claim reasonably encompassed a claim for service connection for TBI. Although later records have indicated that some of the Veteran’s PTSD symptoms were attributable to TBI, at the time of the July 2010 rating decision, the lay and medical evidence did not identify any residuals of TBI. Therefore, the Board does not find that the May 2010 claim for service connection for PTSD reasonably encompassed a claim for service connection for TBI. Finally, the Veteran’s attorney argued that pursuant to 38 C.F.R. § 3.156(c), VA was required to reconsider the claim after VA treatment were found and entered into the record. However, 38 C.F.R. § 3.156(c) pertains to service department records not VA records. Furthermore, no claim for TBI was raised prior to December 2, 2014. Based on the foregoing, the Board finds that an effective date prior to December 2, 2014, for TBI is not warranted. Increased Rating – TBI In a June 2015 rating decision, the RO granted service connection and assigned an initial 10 percent rating for TBI effective December 2, 2014. The Veteran appealed, seeking an initial rating in excess of 10 percent. In a November 2018 decision, the Board granted a 100 percent rating for TBI beginning April 28, 2016, and denied a rating in excess of 10 percent prior to that date. The Veteran appealed to the Court. In a June 2020 Memorandum Decision, the Court vacated that portion of the Board’s decision that denied a rating in excess of 10 percent prior to April 28, 2016. The Court found that the Board provided an inadequate statement of reasons or bases as to why the March 2015 VA examination was afforded more probative weight than the Veteran’s lay testimony in light of the 2010, 2011, and 2016 examinations. The Court noted that the Veteran appeared to have presented the same cluster of symptoms since 2010, and that 2010 and 2011 examiners found him to have PTSD symptoms, which the Veteran’s representative later argued were TBI symptoms. The Board has previously noted that the Veteran’s complaints of memory loss and difficulty concentrating were attributed to his residuals of TBI by an April 2016 private neuropsychologist and were not included in the rating for his service-connected PTSD. During a June 2010 VA examination for PTSD, the Veteran reported experiencing problems concentrating and difficulty with his memory. He stated that he was working at Tinker Air Force Base, had a good relationship with his supervisor and co-workers, and had not lost any time from work. On mental status examination, orientation was within normal limits. Communication, speech, and concentration were within normal limits. Thought processes were appropriate. He was able to understand directions. He did not have slowness of thought nor did he appear confused. Judgment was not impaired. Abstract thinking was normal. Memory was within normal limits. The examiner noted that he had no difficulty understanding commands. During an October 2011 VA examination for PTSD, the Veteran reported experiencing similar symptoms. On mental status examination, orientation was within normal limits. Communication and speech were within normal limits. He showed impaired attention and/or focus. Thought processes were appropriate. He was able to understand directions. He did not have slowness of thought nor did he appear confused. Judgment was not impaired. Abstract thinking was normal. Memory was within normal limits. The examiner noted that he had no difficulty understanding commands. A July 2014 VA treatment record indicated that that review of the Veteran’s systems was negative for memory loss. During a December 2014 Board hearing, the Veteran testified that he had to concentrate more on everything. The report of an April 2015 VA examination for PTSD indicated that the Veteran did not have memory loss or impairment, difficulty understanding complex commands, impaired judgment, impaired abstract thinking, or gross impairment in thought processes or communication associated with PTSD. The examiner indicated that he administered the Montreal Cognitive Assessment (MOCA) to address TBI issues and that the Veteran scored 27 out of 30, which was consistent with the performance of a normal control group, i.e., without cognitive impairment. The examiner indicated that there was no evidence of cognitive impairment. In April 2015, the Veteran was also afforded an initial VA examination for TBI. On evaluation, the examiner found that the Veteran had a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing (1); normal judgment (0); routinely appropriate social interaction (0); was always oriented to person, time, place, and situation (0); normal motor activity (0); normal visual and spatial orientation (0); subjective symptoms that did not interfere with work, instrumental activities of daily living, family, or other close relationships (0); no neurobehavioral effects (0); normal communication (0); and normal consciousness (0). A January 2016 VA treatment record indicated that that review of the Veteran’s systems was negative for memory loss. In May 2016, the Veteran’s representative submitted a TBI evaluation report by a private clinical psychologist who evaluated the Veteran in April 2016. The examining psychologist reported that he was a QTC certified TBI examiner for VA. He submitted a comprehensive evaluation report that included the Veteran’s medical history and pertinent medical evidence. On evaluation the examiner found that the Veteran had moderate to severe functional impairment for memory, attention, concentration and executive functions (3) to total. In that regard, he reported objective evidence from “ANAM4” and “CNS.VS” (TBI military protocol) of moderate to severe (fluctuates with cognitive fatigue); poor judgments (inability to use executive functions); and word finding deficits. He further reported moderate impairment of judgment, noting that the Veteran relied on his wife to understand alternatives and choices and to make decisions (2); inappropriate social interaction such as laughing and joking to minimize social discomfort (1); frequent disorientation to two or more out of the four factors of orientation (person, time, place, and situation) (2); moderately decreased motor activity due to apraxia (3); moderately impaired visual spatial orientation (3); three or more subjective symptoms that interfere with cognitive functioning such as progressive fatigue, circadian rhythm sleep disorder with insomnia, and unstable gait and standing (2); neurobehavioral effects that frequently interfere with the workplace such as sensitivity to crowds, proximity to people, and misunderstanding social cues (2); confusion for verbal and written language and difficulty with word finding (1); and normal consciousness (0). At a March 2017 Board hearing, the Veteran testified that symptoms of his TBI have been continuous for many years, and that some days were better than others. He added that he has learned to somewhat adapt to his symptoms. The Board notes that various disabilities and symptoms associated with the Veteran’s TBI have already been service-connected. Specifically, the Veteran’s headaches and PTSD have been considered, and each disability is separately rated. With that said, there may be some symptoms from those disabilities that overlap. Nonetheless, the April 2016 evaluation report shows that some of the level facets of impairment do not overlap. That includes the facet of cognitive impairment for memory, attention, concentration, and executive functions. In that regard, in rating the Veteran’s PTSD symptoms in August 2018, the Board remarked that his memory loss and concentration had been attributed to his TBI and so, those symptoms were not considered for purposes of determining the Veteran’s PTSD rating. As noted above, the Veteran was assigned both a level 3 facet of impairment and a total facet of impairment by the April 2016 examiner for moderate to severe impairment of memory, attention, concentration, and executive function. Based on the foregoing, and as noted above, the Board determined that the Veteran’s TBI residuals more closely approximated total facet of impairment in his cognitive effects pursuant to Code 8045 effective from the date of the April 28, 2016, neuropsychological examination. Therefore, a 100 percent rating was granted effective April 28, 2016. Prior to April 28, 2016, however, the criteria for a rating in excess of 10 percent for residuals of TBI have not been met. The findings from the June 2010, October 2011, and April 2015 VA examinations outlined above more closely approximate the criteria for the presently assigned 10 percent rating for the period prior to April 28, 2016. The evidence indicated the Veteran had complaints of mild loss of memory, attention, concentration, or executive functions, but without objective evidence on testing, i.e, level “1” impairment for that facet. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. There was no evidence of impaired in judgment, orientation, motor activity, visual spatial orientation, communication, or consciousness. Social interaction and neurobehavioral effects have been considered in a separate rating for PTSD. Other reported subjective symptoms, e.g., headaches and dizziness, have also been considered in separate ratings for migraine headaches and a bilateral ear disability. Although the Veteran testified that his symptoms essentially remained the same throughout the rating period, the Board gives more weight to the June 2010, October 2011, and April 2015 VA examinations outlined above. Notably, the April 2015 VA examiner for PTSD administered psychological testing, i.e., MOCA, and found that the Veteran’s cognition was within normal limits. Thus, although there were subjective complaints of impaired memory and concentration, there was no objective evidence on testing. The Board finds that the examination findings are more probative than the Veteran’s subjective reports that his symptoms have remained the same. Accordingly, the preponderance of the evidence is against a rating in excess of 10 percent rating for residuals of TBI prior to April 28, 2016. REASONS FOR REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. Regarding an increased rating for headaches, a December 2019 VA examiner indicated that the Veteran had characteristic prostrating attacks of headache pain once every two months and that he did not have very prostrating and prolonged attacks of pain productive of economic inadaptability. The examiner indicated that the Veteran’s headaches stopped him from going to work while he was working as a hydraulic mechanic but that he had been retired for the last three years and his headaches did not currently have an economic impact. The Board notes that the severity of the Veteran’s headaches regarding economic inadaptability should be assessed regardless of his employment status. The fact that he is currently retired should not matter in assessing whether his headaches are productive of severe economic inadaptability. The relevant question is whether his headaches are capable of producing severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Accordingly, the Board finds that a remand is necessary for an additional VA examination. In addition, all outstanding VA and private treatment records should be obtained. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected migraine headaches. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include a full description of the functional impact of the service-connected disability on the Veteran’s ordinary activity. The examiner should specifically state whether the Veteran has very frequent completely prostrating and prolonged attacks of headaches, capable of producing severe economic inadaptability. A rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issue remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED