Citation Nr: 21013254 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-19 148 DATE: March 9, 2021 ORDER An initial evaluation in excess of 10 percent disabling for service-connected migraine headaches is denied. An initial evaluation in excess of 40 percent disabling for traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. During the entire appeal period, the Veteran experienced migraine headaches with characteristic prostrating attacks occurring on average once every two to three months. His headaches did not manifest in characteristic prostrating attacks occurring on an average once a month over the last several months. 2. During the entire period on appeal, the preponderance of the evidence shows that the Veteran’s residuals of a TBI consist of mild impairment of memory, attention, concentration, or executive functions and moderate visual spatial orientation resulting in moderate functional impairment consistent with level 2 impairment under the facets of Diagnostic Code 8045. No level 3 impairment under the facets of Diagnostic Code 8045 was shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for a disability rating in excess of 40 percent rating for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served several periods on active duty in the United States Army: from July 1979 to October 1979, from April 1990 to September 1990, from January 1992 to July 1992, from October 1992 to March 1993, from April 1993 to September 1993, from October 1993 to March 1994, from October 1994 to December 1995, and from July 2004 to February 2006, with service in the Persian Gulf War. He was awarded the Purple Heart medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2013 by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. This appeal was last before the Board in July 2018 when it was remanded to afford the Veteran current VA examinations to determine the severity of his headaches and TBI residuals. The Veteran attended VA examinations in May 2019. Stegall v. West, 11 Vet. App. 268 (1998). As a result of those examinations, the Agency of Original Jurisdiction (AOJ) awarded a 10 percent disability rating for the entire period on appeal for the Veteran’s headaches, previously rated as noncompensable, and awarded a 40 percent disability rating for the entire period on appeal for the Veteran’s TBI, previously rated as noncompensable, in an April 2020 rating decision. However, this decision does not terminate the Veteran’s appeal, as he is presumed to be seeking the maximum rating. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the appeal is now ready for appellate review by the Board. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent disabling for service-connected migraine headaches The Veteran appealed his initial noncompensable rating for service connected migraine headaches and asserted that his disability should be rated higher. In an April 2020 rating decision, the AOJ awarded the Veteran a 10 percent disability rating for the entire period on appeal. The Board finds that the Veteran’s headache symptoms are appropriately rated at 10 percent disabling for the period on appeal. The Veteran’s headaches are rated under Diagnostic Code 8100, which provides a noncompensable rating for migraines with less frequent attacks, a 10 percent rating with characteristic prostrating attacks averaging once in two months over the previous several months, a 30 percent rating for characteristic prostrating attacks occurring on average once a month over the previous several months, and a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Turning to the probative evidence of record, the Veteran attended a VA Neurological TBI examination and a VA Headaches examination in May 2013. The Veteran reported that his “severe headaches are now once a month to once every two months.” He also reported that he had not missed any work in the past six months due to his headaches and that the headaches “have only lasted a few hours when they have occurred.” The examiner reported that the Veteran had no characteristic prostrating attacks of migraine headache pain. The Veteran attended a VA Headaches (Including Migraine Headaches) examination in May 2019. His headache symptoms were described as frequent dull, diffuse headaches which occur two to four times a week and which are non-prostrating and migraines headaches with aura which can be prostrating, one every two to three months. The examiner reported characteristic prostrating attacks of migraine or non-migraine pain as once in two months. Medical treatment notes show that the Veteran had intermittent and chronic headaches, controlled by medication (Topiramate taken daily). Under Diagnostic Code 8100, a 10 percent rating is assigned when the headache symptoms show characteristic prostrating attacks averaging once in two months over the previous several months. The medical evidence outlined above describes such symptomology throughout the period on appeal, as the Veteran has described his headaches as mostly non-prostrating, and migraines with characteristic prostrating attacks occurring once every two to three months. As the probative medical evidence of record does not show characteristic prostrating attacks occurring on average once a month over the previous several months, a 30 percent disability is not for application. Accordingly, the Board finds that the Veteran’s service-connected headache symptomology warrants an initial 10 percent disability rating for the entire period on appeal. 2. Entitlement to an evaluation in excess of 40 percent disabling for TBI The Veteran appealed his initial noncompensable rating for service connected TBI and asserted that his disability should be rated higher. In an April 2020 rating decision, the AOJ awarded the Veteran a 40 percent disability rating for the entire period on appeal. The Board finds that the Veteran’s TBI symptoms are appropriately rated at 40 percent disabling for the period on appeal. The Veteran’s TBI is rated under Diagnostic Code 8045, which recognizes that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. 38 C.F.R. § 4.124a, Diagnostic Code 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. Cognitive impairment is to be evaluated under the table, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified (“Table’). Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the Table. Any residual with a distinct diagnosis that may be evaluated under another diagnostic code (such as migraine headache or Ménière’s disease) must be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the Table. Emotional/behavioral dysfunction must be evaluated under § 4.130 (schedule of ratings for mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the Table. Physical (including neurological) dysfunction is evaluated based on the following list under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluation should take place under the most appropriate diagnostic code. Each condition must be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition should be combined under § 4.25. The evaluation assigned based on the Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Each of these areas of dysfunction may require evaluation under listed facets. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Each facet shall be assigned a level of impairment, ranging from 1 to 3. The disability rating assigned shall be based on the facet with the highest level of impairment. The Table contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if total is the level of evaluation for one or more facets. If no facet is evaluated as total, the overall percentage evaluation is assigned 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The manifestations of conditions evaluated pursuant to the Table may overlap with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation should not be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is to be assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. If, however, the manifestations are clearly separable, a separate evaluation should be assigned for each condition. Symptoms listed as examples at certain evaluation levels in the Table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations of 0 for no complaints of impairment of memory, attention, concentration, or executive functions; 1 for a complaint of 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; 2 for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; 3 for objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and total for objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations of 0 for normal; 1 for mildly impaired judgment for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; 2 for moderately impaired judgment, for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; 3 for moderately severely impaired judgment, for even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and total for severely impaired judgment, for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations of 0 for social interaction is routinely appropriate; 1 for social interaction is occasionally inappropriate; 2 for social interaction is frequently inappropriate; and 3 for social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations of 0 for always oriented to person, time, place, and situation; 1 for occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; 2 for occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; 3 for often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and total for consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations of 0 for motor activity normal; 1 for motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); 2 for motor activity mildly decreased or with moderate slowing due to apraxia; 3 for motor activity moderately decreased due to apraxia; and total for motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations of 1 for mildly impaired, occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions, is able to use assistive devices such as GPS (global positioning system); 2 for moderately impaired, usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance, has difficulty using assistive devices such as GPS; 3 for moderately severely impaired, gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and total for severely impaired, may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships, examples are mild or occasional headaches, mild anxiety; 1 for three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships, examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and 2 for three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships, examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations of 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability, any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and 3 for one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations of 0 for able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; 1 for comprehension or expression, or both, of either spoken language or written language is only occasionally impaired, can communicate complex ideas; 2 for inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time, can generally communicate complex ideas; 3 for inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time, may rely on gestures or other alternative modes of communication, able to communicate basic needs; and total for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both, unable to communicate basic needs. Impairment of consciousness is assigned a designation of total for persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. 38 C.F.R. § 4.124a, Diagnostic Code 8045. When this appeal was last before the Board, the Board found that the May 2013 TBI examination was inadequate for adjudication purposes and remanded for a qualified physician (physiatrist, psychiatrist, neurosurgeon, or neurologist) to examine the Veteran. A qualified neurologist examined the Veteran in April 2019. The Board finds this VA examiner’s examination and assessment is highly probative as it presents the medical opinion of a competent expert, informed by review of the claims file and a physical examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Neurologist assessed the Veteran’s TBI symptoms as: Memory, attention, concentration, executive functions as “objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.” The Board observes that these symptoms describe Facet 2 level of impairment. Judgment as “mildly impaired judgment: For complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.” The Board observes that these symptoms describe Facet 1 level of impairment.” Social Interaction as “occasionally inappropriate.” The Board observes that these symptoms describe Facet 1 level of impairment. Orientation as “always oriented to person, time, place, and situation.” The Board observes that these symptoms describe Facet 0 level of impairment. Motor activity as “normal.” The Board observes that these symptoms describe Facet 0 level of impairment. Visual spatial orientation as “moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS (global positioning system).” The Board observes that these symptoms describe Facet 2 level of impairment. Subjective symptoms as “three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. Examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light.” The Board observes that these symptoms describe Facet 1 level of impairment. Neurobehavioral effects as “One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them.” The Board observes that these symptoms describe Facet 2 level of impairment. Communication as “able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language.” The Board observes that these symptoms describe Facet 1 level of impairment. Consciousness as “normal.” The examiner noted that the Veteran’s residuals of TBI also included headaches, which have been separately rated in this decision. Based on the foregoing evidence, the Board finds that a rating of 40 percent for residuals of TBI, but no higher, is warranted for the entire period on appeal, as the highest level of impairment was shown as Facet level 2. Here, the May 2019 VA examiner found level 2 impairment based on objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; moderate impairment of visual spatial orientation; and neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both, but do not preclude them . 38 C.F.R. § 4.124a, Diagnostic Code 8045. However, the Board finds that an increased rating in excess of 40 percent for the residuals of TBI is not warranted at any point during this appeal, as the Veteran was never assessed as having a Facet evaluated as level 3 or higher. Accordingly, the Board finds that an initial 40 percent disability rating for the residuals of TBI is warranted for the entire period on appeal. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.