Citation Nr: 21021647 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-30 199 DATE: April 13, 2021 ORDER A rating higher than 50 percent for traumatic brain injury with cognitive disorder and headaches is denied. A compensable rating for diplopia secondary to fourth cranial nerve palsy is denied. FINDINGS OF FACT 1. The Veteran’s TBI residuals have resulted in no higher than level 2 impairment under the rating schedule. 2. During the appeal period, the Veteran’s fourth cranial nerve palsy has manifested in no worse than occasional diplopia. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 50 percent for traumatic brain injury with cognitive disorder and headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.124a, Diagnostic Code (DC) 9304-8045. 2. The criteria for a compensable rating for diplopia secondary to fourth cranial nerve palsy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, DC 6090. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to June 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs Regional Office. In September 2018, the Veteran verbally withdrew the claim for increased rating for TBI residuals. VA notified the Veteran in April 2019 that the withdrawal must be in writing. No response was received by the Veteran. Therefore, the Board will proceed with adjudication. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). TBI The Veteran contends that a higher rating is warranted for TBI with cognitive disorder and headaches (hereinafter “TBI”). The Board notes that the Veteran has been service-connected and rated at his current evaluation for over 20 years. A disability which has been continuously rated at or above any evaluation for 20 or more years cannot be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951. Accordingly, the evaluation of this disability is protected under this provision of the law. The Veteran’s TBI has been assigned a 50 percent under 38 C.F.R. § 4.124a, DC 9304-8045, for neurocognitive disorder due to TBI, rated as residuals of TBI. DC 8045 provides that VA will separately evaluate any TBI residual under the DC specific to that disability when appropriate. In addition, when there is a diagnosis of a mental disorder, that disability should be rated under the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130. In that regard, while the Veteran’s acquired psychiatric disorder is associated with his TBI, it has been assigned a separate rating under the appropriate DC, as discussed 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 a Traumatic Brain Injury Not Otherwise Classified”, each facet is given a number based upon level of impairment from 0 to 3, and a fifth level for 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. At a June 2010 VA examination, the Veteran reported continuing problems with balance, coordination, and visual disturbances. The Veteran denied headaches, dizziness, weakness, paralysis, numbness, rigidity, seizures, and speech problems. The examiner noted cognitive impairment in the form of difficulty with impulse control and memory for things, such as paying bills. The Veteran experienced instability and weakness and wore a brace for the left ankle. He reported he “feels off.” He also noted constant fatigability. The Veteran experienced insomnia and reported sleeping five to six hours per night. The examiner found effects on occupational activities included decreased coordination, inappropriate behavior, poor social interactions, difficulty following instructions, and weakness or fatigue. At a June 2013 VA examination, the Veteran reported occasional headache, once every 1-2 months. He also reported difficulty making decisions, and with organization skills. The Veteran denied trouble with speaking. The examiner noted that the Veteran was being treated for depression and that he had memory impairment. On examination, the Veteran was mildly unsteady. The examiner found evidence of mild anterior cerebellar injury, mild corticospinal tract injury, a very mild right trochlear partial paresis and some memory deficits, depression, and mild auditory hallucinations. At an October 2020 VA examination, the Veteran complained of mild memory loss, and difficulty with attention, concentration, or executive functions. The examiner noted there was no objective evidence of this on testing. Regarding the facets, the examiner found that judgment, social interaction, orientation, motor activity, visual spatial orientation, communication, and consciousness were all normal. The Veteran had no subjective symptoms and the examiner found no neurobehavioral effects. The examiner noted that the Veteran’s headaches had resolved. Further, the examiner found that he was unable to differentiate the symptoms of TBI versus the Veteran’s mental health disorder. The examiner opined that the Veteran’s inability to work was not due to the TBI. VA medical records are consistent with VA examination reports, indicating a history of TBI with cognitive impairment and psychiatric disorder. After the TBI, the Veteran developed some memory deficits, and complained about impulse control and organization. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 50 percent is warranted for the Veteran’s TBI. VA examinations indicate that the residuals of TBI include memory deficits, some impulse control issues, mild instability, and vision problems. The Veteran has been separately rated for a psychiatric disorder, left lower extremity hemiparesis, and diplopia. The Veteran’s psychiatric rating was based on symptoms including memory impairment, social interactions, and disorientation. The October 2020 VA examiner found that he could not differentiate the symptoms of TBI and psychiatric disorder. Nonetheless, any residuals would not warrant a rating higher than 50 percent, as there was no finding by any examiners or evidence of record supporting a severity of a level “3” or “total” for any facet. At most, residuals warrant a level “2” severity for the memory, attention, concentration, or executive functions facet, which would equate to a 40 percent rating. The Veteran is already receiving a 50 percent rating. Therefore, no higher rating is warranted. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a higher rating is warranted for TBI. Therefore, the claim for increased rating must be denied. Fourth cranial nerve palsy with associated diplopia The Veteran contends that the symptoms of diplopia secondary to fourth cranial nerve palsy (hereinafter “eye disability”) warrants a compensable rating. The Veteran’s eye disability has been assigned a 0 percent rating under DC 6090, for diplopia. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. The Board notes there is no evidence that the Veteran has impairment of visual field Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Evaluation of impairment of muscle function is based on the degree of diplopia. The examiner must record test results for the four major quadrants (upward, downward, and right and left lateral) and the central field (20 degrees or less). 38 C.F.R. § 4.78(a). Diplopia that is occasional or that is correctable with spectacles is evaluated at 0 percent. Diplopia in the central field (20 degrees or less) of any of the four major quadrants equates to 5/200 visual acuity. From 21 to 30 degrees, diplopia in the down quadrant equates to 15/200 visual acuity, diplopia in either lateral quadrant equates to 20/100 visual acuity, and diplopia in the up quadrant equates to 20/70 visual acuity. From 31 to 40 degrees, diplopia in the down quadrant equates to 20/200 visual acuity, diplopia in either lateral quadrant equates to 20/70 visual acuity, and diplopia in the up quadrant equates to 20/40 visual acuity. An evaluation for diplopia will be assigned to only one eye. When a claimant has both diplopia and decreased visual acuity or visual field defect, the rater will assign a level of corrected visual acuity for the poorer eye (or the affected eye, if disability of only one eye is service-connected) that is: one step poorer than it would otherwise warrant if the evaluation for diplopia under DC 6090 is 20/70 or 20/100; two steps poorer if the evaluation under DC 6090 is 20/200 or 15/200; or three steps poorer if the evaluation under DC 6090 is 5/200. This adjusted level of corrected visual acuity cannot exceed a level of 5/200. The rater will apply the adjusted visual acuity for the poorer eye and the corrected visual acuity for the better eye to DCs 6065-66 in the table of Impairment of Central Visual Acuity to determine the rating. 38 C.F.R. § 4.78(b)(1). At a June 2010 VA examination, the examiner diagnosed diplopia associated with a history of TBI causing fourth cranial nerve palsy. On examination, the Veteran had occasional diplopia that was correctable by spectacles. The Veteran reported that the diplopia only bothered him when he was walking over different elevations or when tilting his head to the right. No other visual field defect was noted. The Veteran’s visual acuity was 20/20 in both eyes. The examiner noted that while the Veteran was followed at a VA eye clinic, there was no mention of diplopia or treatment for diplopia in records reviewed. At a May 2013 VA examination, the Veteran reported that diplopia no longer bothers him except when walking over different elevations or when he tilted his head to the right. On examination, the Veteran had diplopia at all degrees, but only occasionally when he tilted his head away from center gaze. No other visual field defect was noted. The Veteran’s visual acuity with 20/40 or better in both eyes. The examiner found functional impact in the form of difficulty performing visual tasks requiring good binocular vision. The examiner also noted that diplopia symptoms may cause balance, orientation, and/or stability issues. The May 2013 VA examiner also noted that that the Veteran was followed at a VA eye clinic, however no mention of diplopia or treatment for diplopia was found in the records reviewed. VA medical records are consistent with VA examination reports, indicating a history of fourth cranial nerve palsy with associated diplopia, secondary to a TBI in service. The records do not indicate treatment or complaints related to diplopia. Visual acuity remained 20/40 or better in both eyes throughout the appeal period. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a higher rating is warranted for the Veteran’s eye disability. The record is clear that the Veteran has a history of fourth cranial nerve palsy with associated diplopia, secondary to TBI. However, both VA treatment records and examination reports indicate that the Veteran’s diplopia is occasional. The May 2013 VA examiner further noted that the diplopia was correctable by spectacles. Under DC 6090, occasional diplopia is evaluated at a 0 percent. No higher rating is warranted on another basis, such as decreased visual acuity, at the record indicates that the Veteran’s visual acuity remained 20/40 or better in both eyes, which equates to a 0 percent rating. The Board notes that the May 2013 VA examiner stated that diplopia may cause balance, orientation, or stability issues. However, as discussed above, the Veteran is being compensated separately for these symptoms under DC 9304-8045, for TBI residuals. Lastly, the Board notes that multiple attempts were made to conduct update VA examinations, however the Veteran did not report for the examination(s) or they were cancelled. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for the Veteran’s diplopia associated with fourth cranial nerve palsy. Therefore, the claim for increased rating is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.