Citation Nr: 21021569 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 11-08 891A DATE: April 13, 2021 ORDER An initial rating higher than 10 percent prior to April 3, 2013, and a compensable rating thereafter for traumatic brain injury (TBI) is denied. An initial rating higher than 10 percent for loss of sense of smell is denied. An initial compensable rating for headaches is denied. FINDINGS OF FACT 1. Prior to April 3, 2013, no residuals of TBI resulted in level of impairment of 2 or higher under the rating schedule. 2. From April 3, 2013, no residuals of TBI resulted in level of impairment of 1 or higher under the rating schedule. 3. The Veteran is awarded the schedular maximum rating for loss of sense of smell. 4. During the appeal period, the Veteran experienced headaches with less frequent attacks. His headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent prior to April 3, 2013, and a compensable rating thereafter for traumatic brain injury (TBI) are not met. 38 U.S.C. §§ 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.124a, Diagnostic Code (DC) 8045. 2. The criteria for an initial rating higher than 10 percent for loss of sense of smell are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.87a, DC 6275. 3. The criteria for a compensable rating for headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8199-8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from August 1990 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Board remanded this matter for further development. Initially, the Board notes that the Veteran failed to report for a February 2020 examination scheduled as part of his claim. The Veteran has not provided an explanation as to why he did not appear. As such, the Board will not remand this matter to schedule another VA examination. Although VA has a duty to assist the Veteran in substantiating his claims, the duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to this claim. Woofs v. Gober, 14 Vet. App. 214, 224 (2000). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Therefore, the Board will proceed on adjudicating the claim based on the current evidence. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. TBI The Veteran’s TBI was assigned an initial rating of 10 percent which was reduced to noncompensable effective April 3, 2013, under DC 8045. This code provides that VA will separately evaluate any TBI residual under the DC specific to that disability when appropriate. The Veteran’s loss of sense of smell and headaches were assigned separate ratings and will be addressed below. Therefore, the evaluation of the Veteran’s TBI will be limited to those residuals which are not already separately rated. There are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Under “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” each facet is given a number based upon level of impairment from 0 to 3, and a fifth level of total impairment. A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets. If no facet is “total,” then the overall percentage evaluation is based on the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The Veteran was first examined in February 2010. He reported headaches, loss of sense of smell, and short-term memory loss. His judgment, social interaction, orientation, visual spatial orientations, and consciousness were all normal. He did not have neurobehavioral effects and he was able to communicate by written and spoken language. In April 2013, the Veteran underwent another VA examination. He was found to have headaches, dizziness, and loss of sense of smell as residuals of his TBI. The examiner found the Veteran to have three or more subjective symptoms that mildly interfere with work. No findings were made regarding the Veteran’s judgment, social interaction, orientation, visual spatial orientations, consciousness, neurobehavioral effects, and ability to communicate. Neither the Veteran nor his representative have put forth any arguments as to why a higher rating is warranted or cited to any evidence demonstrating TBI residuals more severe than those contemplated by the current ratings. Thus, based on the foregoing, the Board finds that there is no evidence which supports a rating higher than the initial 10 percent rating and current noncompensable rating. The Veteran’s residuals of his TBI were found to be loss of sense of smell, headaches, dizziness, and memory loss. The Board notes that the Veteran is separately compensated for depressive disorder with memory loss being the basis for his current rating. An April 2013 VA examination found the Veteran’s cognitive and neurobehavioral symptoms to be due to his depressive disorder. As such, the Board cannot consider memory loss as a basis for a rating for TBI without violating the rule against pyramiding. 38 C.F.R. § 4.14. The Veteran’s loss of sense of smell and headaches are also now separately evaluated leaving him with only one subjective symptom, dizziness, that interferes with work. A level of impairment of 1 for subjective symptoms requires at minimum three subjective symptoms. As the Veteran does not have three subjective symptoms that are not separately rated that mildly interfere with work, a level of impairment of 1 cannot be assigned for subjective symptoms. Higher impairment requires objective evidence that the Veteran has three or more subjective symptoms that mildly or moderately interfere with work. As the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable, and a higher rating is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Loss of Sense of Smell The Veteran’s loss of sense of smell is currently rated at 10 percent disabling under DC 6275. A 10 percent rating is the schedular maximum rating for complete loss of sense of smell. As the Veteran is awarded the schedular maximum rating for complete loss of sense of smell, the Board cannot award a higher rating. Headaches The Veteran’s headaches are separately rated as noncompensable under DC 8199-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. §§ 4.20, 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using “99” for the last 2 digits. Under DC 8100, a noncompensable rating is warranted for headaches with less frequent attacks. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe headache attacks that typically produce extreme exhaustion or powerlessness. The Board concludes that the Veteran’s headaches have occurred with less frequent attacks during the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. At a February 2010 VA examination, the Veteran reported he experiences headaches one to two time per week. He described the headaches as throbbing dull or throbbing sharp pain. The Veteran resolved his headaches by taking an anti-inflammatory. He reported no changes in vision, balance, nausea, vomiting, peripheral neuropathies, or weakness with headaches. At his April 2013 VA examination, the examiner found the Veteran to have prostrating attacks of non-migraine headache pain less than once every two months. He reported sever headaches once every three months over the past year. VA treatment records document the extent of the Veteran’s headaches. In October 2010, the Veteran denied unusual headaches, but stated he has a chronic pattern of about a headache a week. In November 2010, the Veteran reported headaches a few times a month since his TBI that he relieves with Tylenol. This is repeated in November 2013. In December 2016, the Veteran claimed he has headaches almost every day, but gave no information regarding the intensity of his headaches. Based on the foregoing evidence, the Board finds that a compensable rating for headaches is not warranted. The Veteran has consistently reported headaches that are relieved with anti-inflammatory medication and Tylenol. Though he reported prostrating attacks at his April 2013 VA examination, these occurred at a frequency less than once every two months and by November 2013 his headaches were reported as being able to be relieved in November 2013. Though the Veteran reported an increase in the frequency of his headaches in December 2016, there is no evidence describing his symptoms during these headaches. Without evidence that these daily headaches are prostrating in nature, the Board cannot award a compensable rating. The Board finds the preponderance of the evidence to support the current noncompensable rating for the Veteran’s headaches. As the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable, and a higher rating is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, Associate 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.