Citation Nr: 21023582 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-47 344 DATE: April 21, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for a traumatic brain injury (TBI) prior to January 7, 2021, is denied. FINDING OF FACT Prior to January 7, 2021, the Veteran’s TBI was manifested by no worse than level “1” impairment in any facet of cognitive impairment. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a TBI prior to January 7, 2021, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to August 1967. This case is before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) June 2016 and August 2016 rating decisions. In those rating decisions, the RO granted service connection for a TBI, and awarded an initial 10 percent disability rating, effective from December 14, 2015. The Veteran’s notice of disagreement was received in January 2017. The RO issued a statement of the case in September 2017. The Veteran’s VA Form 9, substantive appeal to the Board, was received in September 2017. In August 2018 and October 2020, the Board remanded the case to the RO for further development and adjudicative action. During the pendency of the appeal, the RO issued a rating decision in February 2021 granting an increased rating of 100 percent for the service-connected TBI, effective from January 7, 2021. As such is the maximum rating available for such disability under the rating criteria, the award constitutes a full grant of the benefits sought on appeal for the period on and after January 7, 2021, and the Board has characterized the issue on appeal accordingly. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran’s TBI is rated under Diagnostic Code 8045. Pursuant to Diagnostic Code 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, which is common in varying degrees after TBI; emotional/behavioral; and physical; each of those areas of dysfunction may require rating. 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 include 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. VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Id. 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, should be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” table. Id. In this respect, the Board notes the RO has already awarded a separate rating for migraine headaches secondary to the Veteran’s TBI in the June 2016 rating decision. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 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 table entitled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. In this respect, the Board notes the RO has already awarded a separate rating for post-traumatic stress disorder (PTSD) in the June 2016 rating decision. 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. Id. In this respect, the Board notes the RO has already awarded a separate rating for bilateral hearing loss and tinnitus in the June 2016 rating decision. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI; residuals not listed that are reported on an examination are to be evaluated under the most appropriate Diagnostic Code, with each condition rated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combined under 38 C.F.R. § 4.25. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. The table entitled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of 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 level 5, 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. Id. Diagnostic Code 8045, in pertinent part, contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” 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” traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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. Note (5): A veteran whose residuals of TBI are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008, may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran’s disability rating to determine whether the veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim of entitlement to a disability rating in excess of 10 percent for residuals of a TBI prior to January 7, 2021. Specifically, the Board finds the evidence, detailed below, does not demonstrate that the Veteran’s TBI was manifested by worse than level “1” impairment for any of the facets according to the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. The Veteran was afforded a VA examination in May 2016. Following the examination, the neurologist found the Veteran’s TBI did not result in any impairment under the facets of judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication, or consciousness. However, under facet one, the neurologist recorded a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Specifically, the neurologist reported that the Veteran had “noted problems with attention and focus upon discharge”. In addition, under facet seven, the neurologist found the Veteran had subjective symptoms that did not interfere with work, instrumental activities of daily living, or work, family or other close relationships. The neurologist found no further functional impact resulting from the Veteran’s TBI. Based on such findings, the Veteran’s memory loss represents the highest rated facet, a 1, which equates to a 10 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Veteran contends that the symptomatology associated with his TBI worsened during the period from approximately August 2018 to August 2020, to include many more migraines, headaches, and memory loss. See August 2020 Veteran Letter. The Veteran had a subsequent VA examination in July 2020. The VA neurologist noted the Veteran was separately rating for tinnitus, PTSD, and migraines preceded by “visual scotoma” with global, throbbing headaches, photophobia, sonophobia, and nausea. During the examination, the Veteran reported memory loss such as forgetting names, dates, or where he puts items. Following the examination, the VA neurologist found the Veteran’s service-connected TBI did not result in any impairment under the facets of judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, communication, or consciousness. However, under facet one, based on the Veteran’s reports of forgetting names and misplacing items, the VA neurologist noted a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Additionally, under facet seven, the VA neurologist noted subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family or other close relationships based on the Veteran’s reported headaches. As to residuals of TBI, the VA neurologist noted headaches, including migraine headaches, and with respect to functional impact, the VA neurologist further noted that the Veteran had to rest when severe headaches interfere with concentration and that he experienced mild constant memory loss which mildly constantly interfered with concentration. The VA neurologist concluded that there had been no change in the Veteran’s service-connected TBI and, moreover, due to overlapping features, TBI could not be differentiated from any psychiatric condition. Based on these findings, the Veteran’s memory loss, rated as a 1, again represents the facet with the highest level of impairment and equates to a 10 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Based on the above, the Board finds the medical evidence, which takes into consideration the Veteran’s lay statements as well as neurocognitive, objective testing, does not show a level 2, 3, or total impairment in at least one of the relevant facets of cognitive impairment under the rating criteria. Notably, both the May 2016 and July 2020 VA examination reports reflect the highest level of impairment to be a level “1” in the memory, attention, concentration, executive functions facet of cognitive impairment. As noted above, the Veteran has been separately rated for PTSD, migraines, hearing loss, and tinnitus. For that reason, the Board cannot award a higher rating for the Veteran’s TBI based on such manifestations due to the avoidance of pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, or lack thereof, and described the manifestations of such disability in light of the rating criteria to be more persuasive than the Veteran’s own reports regarding the severity of such condition. Consequently, prior to January 7, 2021, a rating in excess of the 10 percent assigned for the Veteran’s disability under 38 C.F.R. § 4.124a, Diagnostic Code 8045 is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.