Citation Nr: 21014276 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-35 072 DATE: March 11, 2021 ORDER Prior to August 30, 2017, entitlement to a 70 percent rating, but no higher, for residuals of a traumatic brain injury (TBI) is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning August 30, 2017, entitlement to a compensable rating for residuals of a TBI is denied. Prior to February 8, 2018, service connection for headaches as secondary to residuals of a TBI is granted. FINDINGS OF FACT 1. Throughout the appeal period, the evidence reflects the Veteran’s residuals of a TBI have been manifested by one facet of impairment rated as a level 3 severity. 2. Beginning August 30, 2017, service connection has been in effect for depressive disorder, which contemplates all cognitive impairment due to that psychiatric disorder as well as the Veteran’s residuals of a TBI. 3. Prior to February 8, 2018, the preponderance of the evidence weighs in favor of a finding that the Veteran has experienced headaches as a residual of his TBI. CONCLUSIONS OF LAW 1. Prior to August 30, 2017, the criteria for a 70 percent rating, but no higher, for residuals of a TBI have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 2. Beginning August 30, 2017, the criteria for a compensable rating for residuals of a TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 3. Prior to February 8, 2018, the criteria for entitlement to service connection for headaches as residuals of a TBI have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Codes 8045, 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to October 1975. In a September 2014 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for residuals of a TBI and assigned a noncompensable rating, effective February 6, 2014. The Veteran filed a timely Notice of Disagreement with this rating decision and has properly perfected his appeal to the Board. His claim was last before the Board in August 2018, when it was remanded for a new VA examination; this has been accomplished, and therefore, the Board may appropriately proceed with adjudication of the claims. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation.  38 C.F.R. § 4.124a. 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 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 evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” (hereinafter “TBI Table”). Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the TBI Table. However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, should be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the TBI Table. Emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings-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 TBI 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. Diagnostic Code 8045 stipulates that the preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed here that are reported on an examination are evaluated under the most appropriate diagnostic code. Each condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and each separately rated condition is combined under § 4.25. The evaluation assigned based on the TBI Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The TBI Table contains 10 important facets of a TBI 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, and 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 to be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The regulation provides the following example: assign a 70 percent rating if 3 is the highest level of evaluation for any facet. In other words, one rating is to be assigned based upon the highest level of severity for any of the 10 facets of cognitive impairment. There are five notes that accompany Diagnostic Code 8045. Only the first four are pertinent to the claim currently before the Board. Note (1): There may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): 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. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995).   Factual Background and Analysis The Veteran is claiming an initial compensable rating is warranted for his residuals of a TBI throughout the appeal period (beginning February 6, 2014). In his September 2014 Notice of Disagreement, the Veteran indicated he felt the noncompensable rating did not consider some of his symptoms outlined for a higher rating such as mild memory loss, concentration problems, difficulty with social interaction, being prone to disorientation, and bilateral tinnitus. He also indicated he experienced insomnia, hypersensitivity to light, intermittent dizziness, and infrequent headaches. In his September 2015 Substantive Appeal (VA Form 9) to the Board, he indicated the July 2014 VA examination did not consider his cognitive impairment and subjective symptoms such as impairment of memory, attention and concentration or executive functions, and the fact that his social interaction is not routinely appropriate (elaborating that he avoided crowds and did not feel comfortable establishing personal relationships). Initially, the Board notes that an August 2018 neurology letter opines that it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches were related to his residuals of a TBI. In this regard, in an August 2020 rating decision, service connection for migraine headaches as related to residuals of a TBI was granted, beginning February 8, 2018 (the date VA received the Veteran’s specific claim for headaches). While the Veteran has not disagreed with the effective date assigned for the grant of migraine headaches, the Board finds this claim is part and parcel of his claim for an increased rating for residuals of a TBI. Significantly, Diagnostic Code 8045 states to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache, even if that diagnosis if based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of [Traumatic Brain Injury] Not Otherwise Classified.” 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board therefore finds that assigning a separate rating under Diagnostic Code 8100 for the Veteran’s headaches while simultaneously considering cognitive and physical symptoms under Diagnostic Code 8045 is appropriate. Accordingly, the Board has usurped jurisdiction and finds service for migraine headaches is granted prior to February 8, 2018. The AOJ will set the effective date and disability rating based on this grant in an implementing rating decision, which will preserve the Veteran’s right to appeal those downstream issues. Next, the Board will turn to whether an initial compensable rating is warranted for the Veteran’s residuals of a TBI. Following a review of the evidence of record, the Board finds a 70 percent rating prior to August 30, 2017, but no higher, is warranted. Thereafter, a compensable rating is not warranted. At his July 2014 VA TBI examination, the Veteran reported he had an alteration of consciousness for about 10 minutes during service in February 1975, as documented in his service records. He denied any issues after the acute recovery, denied any current symptoms relatable to the incident, and reported he recovered fully and resumed his duties until he completed active duty. All ten facets of TBI-related cognitive impairment and subjective symptoms were noted to be normal. The examiner noted there were no residuals of the Veteran’s TBI present, to include mental, physical, or neurological conditions. Significantly, neurocognitive testing was not performed at this examination and the Veteran has taken issue with this examination stating that he felt it was cursory and did not accurately portray his symptoms. At his first neurology consultation in January 2016, the Veteran indicated he first noticed memory loss six years prior and that it had progressed over time. He reported difficulty with recalling conversations and with short greater than long term memory loss and acknowledged becoming lost in familiar locations. The examiner found the Veteran’s memory loss appeared to be secondary to mild cognitive impairment but noted he also demonstrated difficulty with some activities of daily living. It was also noted the Veteran had several features suggestive of ongoing depression which could also lead to some level of cognitive impairment. At neuropsychological testing performed in March 2016, the Veteran reported he was able to complete military service following his TBI and that he earned college degrees in 1990 and 1996, including a Bachelor’s degree and licensures in physical therapy and as a trainer. Records reflect he was incarcerated from 2002 to 2009; he noted he had been diagnosed with adjustment disorder following his release from prison. He stated he had been experiencing increasing memory problems in recent months. Significantly, he reported difficulty remembering where he put things; he denied getting lost but stated his wife did all the driving. He stated he had little energy, did not enjoy going out anymore, avoided crowds, and was afraid of being in closed rooms. The examiner determined that current testing was consistent with an individual experiencing a decline in memory, visuospatial abilities, and attention from what would be expected given his previous level of educational attainment and the impression was rule out unspecified mild neurocognitive disorder. At a July 2019 VA TBI examination, a severity level of 2 was assigned for memory, attention, concentration, executive functioning. Judgment was found to be totally impaired and social interaction were found to be totally impaired based on the examiner’s conclusion that the Veteran could not make a decision on buying a new house and to move. Social interaction was found to be a level 3 severity. A severity of 1 was assigned for orientation and visual/special orientation. Motor activity, subjective symptoms (migraine headaches and associated symptoms), and neurobehavioral effects, were assigned a severity level of 2. Here, while the Board acknowledges that the Veteran has impaired judgment, it finds the preponderance of the evidence weighs against a finding his judgment is best described as “total” as the July 2019 examiner says. Significantly, the reason the examiner gave for this finding was that the Veteran and his spouse were unable to decide whether to buy a house and relocate. The criteria for a level 3 severity describe judgment as moderately severely impaired; 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. The criteria for total level of severity of judgment describe it as “severely impaired,” 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. An example under the total severity of impaired judgment is a person who is unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Here, the basis for the “total” impairment was based on the Veteran and his spouse’s inability to decide whether to move to another state and/or sell their home; the Board finds this is more than a “routine and familiar” decision as the regulation notes and finds the examiner’s basis for “total” impairment is near-sighted. The Board does not find this isolated incident rises to the level such that the Veteran’s judgment is found totally impaired; rather, VA treatment records do not suggest and the Veteran has not claimed that he experiences difficulty making routine and familiar decisions such that he is totally impaired. For example, he is still able to complete activities of daily living unassisted and there is no indication that he has impaired judgment in this aspect; moreover, there is no suggestion or claim that he is so impaired in judgment such that he is in danger of harming himself or others. Moreover, at a July 2019 VA mental health examination, there is no indication that the Veteran’s judgment was totally impaired. Thus, the Board finds that the severity of the judgment facet is better contemplated by a 3 in severity. As noted above, the July 2014 and July 2019 examinations included testing of the 10 facets required for rating TBI residuals under the applicable rating criteria. As previously noted, these 10 facets are (1) memory, attention, concentration, and executive function; (2) judgment; (3) social interaction; (4) orientation; (5) motor activity (including evaluation of intact motor and sensory systems); (6) visual spatial orientation; (7) subjective symptoms; (8) neurobehavioral effects; (9) communication; and (10) consciousness. However, the July 2014 examiner did not perform neurocognitive testing; therefore, the Board finds this examination holds little probative value. In this regard, because there was no testing performed at the July 2014 examination and because the testing in March 2016 did not consider the 10 facets of impairment, the Board has afforded the Veteran the benefit of the doubt and considered the impairment found in the July 2019 examination to be indicative of his impairment throughout the appeal period. Based on the foregoing, given that the highest level of any one facet, in this case, the social interaction facet, is a level 3, a 70 percent rating is warranted prior to August 30, 2017. A compensable rating thereafter is not warranted. In this regard and as previously noted, Diagnostic Code 8045 provides that emotional/behavioral dysfunction is evaluated under § 4.130 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 TBI Table. Beginning August 30, 2017, the Veteran has been in receipt of entitlement to service connection for depressive disorder, and the July 2019 VA mental health examiner explained it was not possible to separate the Veteran’s symptoms from his residuals of a TBI from his depressive disorder symptoms. Therefore, to assign a concurrent 70 percent rating under Diagnostic Code 8045 (premised on the facets of impairment), which already contemplate the Veteran’s cognitive and subjective deficiencies, would amount to pyramiding, which is prohibited under VA regulation. See 38 C.F.R. § 4.14 Although records may demonstrate he had a diagnosis of depressive disorder prior to August 30, 2017, service connection was not in effect then; therefore, in accordance with Diagnostic Code 8045, a 70 percent rating prior to August 30, 2017 is warranted based on a level 3 severity of impairment in the social interaction facet. Throughout the appeal period, separate ratings for physical manifestations associated with the Veteran’s residuals of a TBI are not warranted. Significantly, no associated physical manifestations associated with the Veteran’s residuals of a TBI were found on neurological and/or physical examinations. While he claimed on his September 2014 Notice of Disagreement that he experienced tinnitus and dizziness, he did not claim these symptoms to examiners; moreover, service connection for tinnitus has been denied in a final rating decision. Although he reported imbalance at an October 2016 neurology appointment, the preponderance of the evidence weighs against a finding he experiences physical (to include neurological) manifestations resulting in imbalance. Notably, several VA treatment records demonstrate the Veteran’s motor, sensory, and coordination was intact. While a single neurology note reflects the Veteran had trouble with his gait in the morning, it was intact on examination. Accordingly, a separate rating based on any associated physical manifestations is not warranted throughout the record. The Veteran is in receipt of entitlement to a total disability rating based on individual unemployability (TDIU) beginning August 30, 2017. In his October 2017 TDIU application, he claimed to be unemployable due to gastroesophageal reflux disorder (GERD) and its residuals. He has not claimed to be unemployable due to residuals of a TBI, and therefore, entitlement to TDIU prior to August 30, 2017, is not part and parcel of the instant claim and is not before the Board. Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against ratings in excess of those continued or assigned herein, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.