Citation Nr: 21023856 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-34 393A DATE: April 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected traumatic brain injury (TBI) is denied. Entitlement to a 50 percent disability rating, but no higher, for service-connected post traumatic headaches is granted for the entire appeal period. REMANDED Entitlement to a disability rating in excess of 50 percent for service-connected major depressive disorder, NOS, and generalized anxiety disorder associated with TBI for the period prior to July 28, 2020, and to a disability rating in excess of 70 percent from that date, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to November 14, 2016, is remanded. FINDINGS OF FACT 1. No facet of the Veteran’s cognitive impairments or other residuals of TBI that are not otherwise classified and compensated is rated at a level greater than level 1. 2. Throughout the appeal period, the Veteran’s service-connected post traumatic headache condition has resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8045. 2. The criteria for entitlement to a 50 percent disability rating, but no higher for service-connected post traumatic headaches have been met for the entirety of the appeal period; 50 percent is the highest schedular rating for this condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1976 to December 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Regional Office (RO). These matters were previously before the Board in April 2018. Increased Rating Entitlement to a disability rating in excess of 10 percent for TBI The Veteran contends that he is entitled to a higher rating for his TBI condition. TBIs are evaluated based on their effects on three main areas of functioning: cognitive, emotional/behavioral, and physical. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions. 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. Cognitive impairment is evaluated under a table that governs the evaluation of cognitive impairment and other residuals of TBI not otherwise specified. Cognitive impairment can also be manifested, and sometimes may only be manifested, by subjective symptoms. Subjective symptoms are also evaluated under the table governing cognitive impairment and other residuals of TBI not otherwise specified, unless the subjective symptom has a distinct diagnosis which may be evaluated under another diagnostic code, such as migraine headaches. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. Emotional/behavioral dysfunction related to TBI is evaluated under the diagnostic code for mental disorders when there is a diagnosis of a mental disorder. When no mental disorder is diagnosed, emotional/behavioral symptoms of TBI are evaluated under the table governing evaluation of cognitive impairment and other residuals of TBI not otherwise specified. Id. Physical (including neurological) dysfunction related to TBI is generally rated under an appropriate diagnostic code for the physical disability, such as joint or extremity pain, loss of sensation, hearing loss, seizures, etc. Id. The table governing the evaluation of cognitive impairment and other residuals of TBI not otherwise specified contains 10 facets of TBI related to cognitive impairment and subjective symptoms, and rates these criteria by numeric levels from 0 to 3, and, in some instances, with a fifth level designated “total.” Not every facet has all the numeric levels. A non-compensable (0 percent) evaluation is assigned where the highest numeric level of any facet is 0; a 10 percent evaluation is warranted where the highest numeric level of any facet is 1; a 40 percent evaluation is awarded where the highest numeric level of any facet is 2; a 70 percent evaluation is awarded where the highest evaluation of any facet is 3; and a 100 percent evaluation is assigned where the highest numeric level of any facet is total. Id. The first facet of the cognitive impairment and other residuals of TBI not otherwise specified table (Table) is memory, attention, concentration, and executive functions. The Table assigns a level of 0 where the veteran reports no complaints of impairment of memory, attention, concentration, or executive functions; a level of 1 where a veteran reports complaints of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words, or often misplacing items), attention, concentration, or executive functions, but where these complaints are not accompanied by objective evidence on testing; a level of 2 where objective testing reveals evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; a level of 3 where objective testing reveals evidence of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and a total level objective testing reveals evidence of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Id. The second facet of the Table is judgment. The Table assigns a level of 0 for normal judgment; a level of 1 for mildly impaired judgment, being occasionally unable to identify, understand, weigh alternatives, understand the consequences of choices, and make a reasonable decision for complex or unfamiliar decisions; a level of 2 for moderately impaired judgment, being usually unable to identify, understand, weight the alternatives, understand the consequences of choices, and make a reasonable decision for complex or unfamiliar decisions while having little difficulty with simple decisions; a level of 3 for moderately severely impaired judgment, being occasionally unable to identify, understand, weigh the alternatives, understand the consequences of choices, and make a reasonable decision for even routine and familiar decisions; and a total level of impairment for severely impaired judgment, being unable usually unable to identify, understand, weigh the alternatives, understand the consequences of choices, and make a reasonable decision for even routine and familiar decisions. Id. The third facet of the Table is social interaction. The Table assigns a level of 0 for social interaction that is routinely appropriate; a level of 1 for social interaction that is occasionally inappropriate; a level of 2 for social interaction that is frequently inappropriate; a level of 3 for social interaction that is inappropriate most or all of the time. Id. The fourth facet of the Table is orientation. The Table assigns a level of 0 where a veteran is always oriented to person, time, place, and situation; a level of 1 where a veteran is occasionally disoriented to one of the four aspects (person, time, place or situation) of orientation; a level of 2 where a veteran is occasionally disoriented to two of the four aspects of orientation or often disoriented to one aspect of orientation; a level of 3 where a veteran is often disoriented to two or more of the four aspects of orientation; and a total level where a veteran is consistently disoriented to two or more of the aspects of orientation. Id. The fifth facet of the Table is motor activity with an intact motor and sensory system. The Table assigns a level of 0 for normal motor activity; a level of 1 for motor activity that is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities despite normal motor function); a level of 2 for motor activity that is mildly decreased or with moderate slowing due to apraxia; a level of 3 for motor activity that is moderately decreased due to apraxia; and a total level where motor activity is severely decreased due to apraxia. Id. The sixth facet of the Table is visual and spatial orientation. The Table assigns a level of 0 for normal visual-spatial orientation; a level of 1 for mildly impaired visual or spatial orientation, occasionally getting lost in unfamiliar surroundings, difficulty reading maps or following directions, but able to use assistive devices like a GPS; a level of 2 for moderately impaired visual and spatial orientation, usually getting lost in unfamiliar surroundings, difficulty reading maps, following directions, judging distances, and difficulty using assistive devices such as a GPS; a level of 3 for moderately severely impaired visual spatial orientation, getting lost even in familiar surroundings, unable to use assistive devices such as a GPS; and a total level for severely impaired visual and spatial orientation, being unable to touch or name the parts of the body, identify the relative position in space of two objects, or find the way from one room to another in a familiar environment. Id. The seventh facet of the Table is subjective symptoms. The table assigns a level of 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships; a level of 1 for three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships; and a level of 2 for three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships. Id. The eighth facet of the Table is neurobehavioral effects. The Table assigns a level of 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction; a level of 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction or both but do not preclude them; a level of 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and a level of 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. Id. The ninth facet of the Table is communication. The Table assigns a level of 0 where a veteran is able to communicate by spoken and written language and to comprehend spoken and written language; a level of 1 where comprehension or expression, or both, of either spoken language or written language is only occasionally impaired, where a veteran continues to have the ability to express complex ideas; a level of 2 where a veteran has an 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, and can generally communicate complex ideas; a level of 3 where a veteran is unable 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, relying on gestures or other alternative modes of communication and able to communicate basic needs; and a total level where there is a complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both, with an inability to communicate basic needs. Id. The final facet of the Table is consciousness. The Table assigns a total rating where a veteran has persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. Id. The Veteran’s TBI condition has been adequately evaluated by the Veteran’s VA examinations in December 2013, November 2016, and December 2020, and they are representative of the evidence of the Veteran’s impairment from TBI. At each of those examinations, the examiners noted that the Veteran had a complaint of mild memory loss, attention, concentration, or executive functions without objective evidence on testing. The Veteran’s judgment was assessed as normal at all of these examinations. His social interaction was assessed as routinely appropriate at all these examinations. He was always noted to be oriented to person, time, place, and situation at each of these examinations. His motor activity was normal at all of these examinations. His visual spatial orientation was normal at all of these examinations. These examinations also assessed the Veteran as having no subjective symptoms or to have subjective symptoms that did not interfere with work, instrumental activities of daily living, or work, family or other close relationships. The Veteran was also assessed as having no neurobehavioral effects at these examinations. The Veteran was also always assessed as having the ability to communicate by and understand spoken and written language and have normal consciousness at all of these examinations. Based on this evidence, the Board finds that the residuals of the Veteran’s TBI do not meet the criteria for a rating higher than 10 percent at any point during the appeal period. The criteria for a rating in excess of 10 percent would require one of the facets of this condition to have a numerical value of 2 or higher. The evaluations of the Veteran’s TBI impairment have simply not demonstrated this level of impairment on any of the examinations throughout the appeal period, and the rest of the medical evidence is similar to these examination reports. The Veteran’s primary complaints regarding his condition have centered on memory and attention deficits, headaches and symptoms related to them, and mental health problems. The Board acknowledges the Veteran’s complaints and the people in his life’s observations of the Veteran’s asserted forgetfulness or lack of attention, requiring him to, for instance, use memory aids to remember what medications to take (as he explained in his December 2020 VA examination). However, on objective testing during VA examinations at multiple points throughout the appeal period, these deficits that the Veteran reported could not be substantiated on cognitive testing. The 10 percent evaluation encompasses memory and attention deficits of precisely this type. Id. The Board also acknowledges that the Veteran has a headache condition and a mental health diagnosis. The Veteran is separately compensated for this headache condition and his mental health diagnosis in compliance with the rating code’s preference that subjective symptoms such as headaches be rated according to their more specific rating codes and that neurobehavioral effects be rated under the schedule of ratings for mental health disorders where a mental disorder is diagnosed. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. Moreover, given the decision in the following section on the Veteran’s headache condition, eliminating the Veteran’s separate compensation for these conditions and compensating them under the TBI rating code would not be advantageous, even if the Veteran received the highest numeric level for his headaches as a subjective symptom and the highest numeric level for his mental disorder as a neurobehavioral TBI symptom. Subjective symptoms such as headaches are only eligible for a maximum numeric level of 2 under the Table. Id. Neurobehavioral effects are only eligible for a maximum rating of 3. Id. Consequently, even if the Board were to rearrange the Veteran’s compensation such that his headache and psychiatric symptoms were given the maximum ratings under these two facets of the Table, the Veteran’s compensation for his TBI would be 70 percent. Id. However, as the order above indicates, and the section that follows will explain, the Board has found that the Veteran’s headache condition warrants a 50 percent disability rating throughout the appeal period. Likewise, the Veteran’s psychiatric condition is also rated 50 percent, and later 70 percent. Combining the 50 percent disability rating for his headache condition and the 50 percent disability rating for his psychiatric condition yields a combined disability rating of 80 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.25. This rating exceeds the 70 percent rating that would be the maximum rating he would receive from rating the headache and psychiatric residuals under the TBI table. Therefore, because the evidence does not support that the Veteran has symptoms other than those that are better compensated under specific rating codes that would warrant a rating for impairment due to TBI greater than 10 percent; and because the rating code manifests a preference that subjective and psychiatric symptoms are to be rated under their specific rating codes; and because there is no advantage to the Veteran in discontinuing his separate ratings and re-rating his headache and psychiatric symptoms merely as facets of TBI, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for TBI. Entitlement to a compensable disability rating for service-connected post traumatic headaches prior to November 14, 2016, and to a disability rating in excess of 30 percent from that date The Veteran contends that he is entitled to a higher rating because of the frequency and the severity of his headaches, and because of the effect that these headaches had on his work, including, in his telling, essentially forcing him out of the work force. The Veteran’s post traumatic headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for characteristic prostrating attacks that occur less frequently than once in 2 months. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. 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 migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Board concludes that the Veteran has had very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the appeal period and an initial 50 percent disability rating is therefore warranted for this condition. Though the March 2012 VA examiner assessed the Veteran as not having any prostrating attacks of headache pain, the Veteran kept a headache journal over the months of July to September of that year where he documented headaches on the majority of days that caused him to abandon his activities and remain in a dark room or otherwise prevented him from leaving the house until his headaches subsided. Similarly, the December 2013 VA examiner indicated that the Veteran had prostrating attacks of headache pain more frequently than once per month. However, the Veteran reported headaches daily that lasted most of the day and were usually prostrating until he took his medications that provided fair relief. The Veteran reported associated sensitivity to light during his headaches. A September 2014 private employability opinion indicated that the Veteran’s headaches were essentially preventing him from engaging in an occupational environment given the frequency and severity of his headaches. Statements from the Veteran’s sister and girlfriend in October 2014 corroborate that the Veteran was very frequently in pain from his headache condition to the point that he would have to go to bed, avoid conversation, and remain in total darkness, sometimes spending entire days in the bedroom. The November 2016 examiner also indicated that the Veteran’s headaches were only prostrating approximately once per month. However, the next year, the Veteran provided a compensation and pension (C&P) examination report from a private examiner where the Veteran once again reported daily headaches that required him to lie down about half the day every day due to the persistent pain, associated nausea, sensitivity to sounds, diminished concentration and dizziness. Consistent with the Veteran’s headache journal from 2012, this examiner indicated that the Veteran’s headache condition had been at this severity and frequency for the entirety of the appeal period and longer – citing the Veteran’s report about leaving his last job in 2008 due to the frequency of the headaches and needing significant accomodation from his employer in order to maintain his position for as long as he did. Consequently, the December 2017 private examiner assessed the Veteran as having very frequent, prolonged, and completely prostrating attacks productive of severe economic inadaptability. Despite essentially affirming the Veteran’s reports about the nature and frequency of the Veteran’s headaches, the December 2020 examiner indicated that prostrating attacks only occurred about once per month. However, the Veteran reported that his headaches were almost daily, accompanied by sensitivity to sound, and that he was unable to work while having a headache and that when he was working he was allowed to go to a quiet dark room until his headache improved. The Board finds that the best reading of this evidence is that the Veteran’s headaches were prostrating very frequently, for prolonged periods of time (or so frequently that they were essentially prolonged), and provoked severe economic inadaptability. The Veteran and his girlfriend and siblings all corroborated the frequent and severe nature of the Veteran’s headaches, symptoms that lay people are qualified to observe. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Though the VA examiners appeared skeptical of the Veteran’s reports about the frequency of his severe headaches, the Veteran has consistently reported and sometimes in significant detail – including keeping a headache calendar, that demonstrates quite conclusively that the frequency and severity of the Veteran’s headaches would make it difficult if not impossible for him to work for hours on many, if not most days. Based on this evidence, the Board finds that an initial 50 percent disability rating is warranted for this condition. A rating in excess of 50 percent is not warranted as this is the highest schedular award for this condition. REASONS FOR REMAND Entitlement to a disability rating in excess of 50 percent for service-connected major depressive disorder, NOS, and generalized anxiety disorder associated with TBI for the period prior to July 28, 2020, and to a disability rating in excess of 70 percent from that date Entitlement to TDIU for the period prior to November 29, 2016 These matters were remanded in April 2018. Additional development was conducted, and the claims were partially granted. However, the Veteran and his representative were not provided with a supplemental statement of the case responsive to these partial grants as required by the final remand directive in the 2018 remand and VA regulations. Consequently, these matters must be remanded and an appropriate supplemental statement of the case considering the evidence submitted since the last supplemental statement of the case addressing these issues was submitted. The matters are REMANDED for the following action: Send the Veteran and his representative a supplemental statement of the case that addresses the issues of entitlement to an increased rating during all periods for the Veteran’s service-connected psychiatric condition and entitlement to TDIU prior to November 29, 2016 taking into account all evidence received since the most recent supplemental statement of the case addressing these issues was received. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.