Citation Nr: 21024533 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-29 154A DATE: April 23, 2021 ORDER Prior to May 19, 2017, a compensable rating for traumatic brain injury (TBI) is denied. Beginning May 19, 2017, a rating of 40 percent, but no higher, for TBI is granted. FINDINGS OF FACT 1. Prior to May 19, 2017, the highest level of impairment of any facet related to the Veteran’s TBI symptomatology is “1”; however, the impairment was already contemplated by his separate rating for PTSD. 2. Beginning May 19, 2017, the highest level of impairment of any facet related to the Veteran’s TBI symptomatology, that is not already contemplated by another service-connected evaluation, is “2”. CONCLUSIONS OF LAW 1. Prior to May 19, 2017, the criteria for an initial compensable rating for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a , Diagnostic Code (DC) 8045. 2. Since May 19, 2017, the criteria for a 40 percent rating for TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a , Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 through December 1982, February 2010 through August 2014. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in February 2021. Prior to May 19, 2017, a compensable rating for traumatic brain injury (TBI) is denied; beginning May 19, 2017, a rating of 40 percent, but no higher, is granted. The Veteran is currently assigned a noncompensable rating for his TBI under DC 8045. He seeks a higher rating. The Board notes that the Veteran has a separate noncompensable rating for migraine headaches, and separate ratings for posttraumatic stress disorder (PTSD), with a 50 percent rating prior to April 2, 2015, and a 70 percent rating beginning April 2, 2015. Under DC 8045 for brain disease due to trauma 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 these areas of dysfunction may require evaluation. 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 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. Cognitive impairment should be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” See 38 C.F.R. § § 4.124a, DC 8045. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another DC, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms should be separately evaluated, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Id. 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, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate DC: 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. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate DC. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under § 4.25 the evaluations for each separately rated condition. 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 need for special monthly compensation (SMC) is to be considered for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. The table titled “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 a fifth level, 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. Assign a 100 percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. See 38 C.F.R. § § 4.124a, DC 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a comorbid mental, neurologic, or other physical disorder that can be separately evaluated under another DC. 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. Id. 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. Id. 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. Id. 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 DC 8045. Id. Evaluations assigned are based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. Id. Turning to the evidence of record, a July 2013 VA examination records the Veteran’s report that he did not believe that any of his symptoms were related to TBI. The Veteran denied most TBI associated symptomology but reported headaches twice a month with pressure behind the eyes. Upon examination, he had moderate memory impairment, decreased attention, difficulty concentrating, and difficulty with executive functioning., normal judgment, and social interaction was routinely appropriate. He had difficulty retaining steps in a procedure and relied on notes extensively. He reported irritability and rage but had adequate self-control. He was also easily startled by abrupt sounds. Overall, the examiner opined that he had mild issues in memory, attention, concentration, and executive functioning; judgment normal, social interaction routinely appropriate, was always oriented to person, time, place, and situation; normal motor activity, normal visual spatial orientation, three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships.; one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; and consciousness normal. The examiner also opined that his symptoms are most likely than not related to his psychiatric illness. In April 2015, treatment notes document a neurological consultation. Here, the Veteran reported a history of headaches, memory loss, and insomnia. The physician opined that a significant component to the Veteran’s symptomology should be related to the Veteran’s PTSD and depression. However, the physician disagreed with the minimalization of his associated TBI. The physician expressed that while they could not provide any specific numeral value, it was believed that the Veteran’s TBI has and is playing a significant role in the Veteran’s symptoms. In June 2015, VA obtained an addendum medical opinion for the Veteran’s TBI. The examiner noted that the Veteran had marked deficits of executive functions such as planning or organization and motor functioning which are directly attributable to his TBI. His sleep disturbances is most likely due to a combination of PTSD, depressive disorder, and TBI. In May 2017, the Veteran was afforded another TBI examination. Here, he stated his current issues were that he stutters a lot, had poor concentration, poor memory, poor temper, and does not work efficiently as before. Upon examination, the Veteran had mild impairment of memory, attention, concentration, or extensive functioning in mild functional impairment; moderately impaired judgment; occasionally inappropriate social interaction, was always oriented to person, time, pace, and situation; normal motor activity, normal visual spatial orientation, and three or more subjective symptoms that mildly interfere with work; instrumental activities; or work, family or other close relationships; there was one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; has ability to communicate by spoken and written language and to comprehend spoken and written language, and consciousness normal. The subjective symptoms were listed as headaches, anxiety, insomnia, and light sensitivity. There was also some subjective sensory change on the medial fingers on the Veteran’s right hand. The examiner opined that it is highly unlikely that his current symptoms, including reports of cognitive decline, are related to his concussion history. The examiner further opined that the Veteran’s TBI was not playing a significant role in his current symptoms. The Veteran submitted to a private neurocognitive assessment in November 2017. In relation to his TBI, the Veteran reported symptoms of headaches with photophobia, deficits in concentration and attention, and problems with short-term memory. After the examination, the physician opined that the Veteran suffered from marked symptoms of PTSD and substantial neurocognitive/post-concussive deficits related to his TBI, including headaches, irritability, decreased short-term memory and substantial deficits in attention, concentration, sensory gaiting, task organization, task completion, and comprehension and retention of new material. In December 2017, the private physician completed a PTSD disability benefits questionnaire (DBQ). Within this report, the private physician indicated that the symptoms attributable to the Veteran’s TBI included recurrent severe headaches, memory deficits, and ADHD symptoms. The examiner opined that his neurocognitive deficits are such that PTSD as a sole cause is highly unlikely. In May 2019, treatment notes recorded that the Veteran’s TBI was causing a midline shift that was corrected with prisms. At the February 2021 hearing, the Veteran testified that he experienced communication issues, problems with social interaction, migraines, and vision problems. It was also noted that the Veteran presented with word findings and issues with cognitive and executive functioning. The Veteran additionally endorsed problems with judgment and use of a finger. Treatment notes thereafter show no greater limitations and the Veteran has asserted that his condition has not changed since his examinations. Based on the evidence of record, the Board finds that an noncompensable rating is warranted prior to May 19, 2017, and a 40 percent rating thereafter for his TBI. As an initial matter, the Board notes that the Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. Essentially, under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Here, some the Veteran’s symptoms for residuals of TBI overlap with his symptoms of service-connected migraine headaches and PTSD, such that to rate those symptoms under both the criteria for TBI under DC 8045, PTSD under DC 9411, and migraine headaches under DC 8100 would constitute pyramiding. The Board is aware that medical evidence is in conflict regarding whether the Veteran’s symptoms stem solely from his PTSD or is otherwise attributable to his TBI. The Board resolves doubt in the Veteran’s favor and finds that the Veteran’s symptomology stems from both his PTSD and TBI disabilities, as supported by private examiners. Here, the evidence reflects that the Veteran’s symptoms of TBI are attention and concentration deficits, deficits in planning and organization (executive functions), problems in holistic reasoning, retention, headaches with light and sound sensitivity, visual problems, impairment in motor activity, and short-term memory. Prior to May 19, 2017, the Veteran’s symptoms most approximately resulted in a level of severity of “1” for the memory, attention, concentration, executive functions facet; judgement a level “0”, social interaction a level of “0”, orientation a level “0”, motor activity a level “0”, visual spatial orientation a level “0”, subjective symptoms a level “1”, neurobehavioral effects a level “1”, communication a level “0”, and consciousness facet a level “1” based on the Veteran’s June 2013 VA examination. His identified symptoms at the time were insomnia due to nightmares, headaches, memory impairment, irritability and rage with self-control, and difficulty retaining steps and using notes. Based on these findings, a total disability rating of 10 percent would be warranted for the Veteran’s limitations in the memory concentration, executive functions, neurobehavioral effects, and subjective symptoms facets under DC 8045. However, the Veteran was already in receipt of separate ratings for migraines headaches and PTSD that specifically contemplated these symptoms, such that, an award for these symptoms under DC 8045 would overlap with the Veteran’s service-connected PTSD and migraine headaches, thus rating them under TBI would constitute pyramiding. Specifically with regard to the PTSD evaluation, rating decisions in September 2014, April 2015, and December 2015 spelled out the symptoms on which the 50, and then 70, percent ratings were based, and these included all those listed above. As of May 19, 2017, the date of a VA examination, the Veteran’s symptoms most approximately resulted in a level of severity of “2” for the memory, attention, concentration, executive functions facet; judgment a level “2”, social interaction a level of “1”, orientation a level “0”, motor activity a level “0”, visual spatial orientation a level “0”, subjective symptoms a level “1”, neurobehavioral effects a level “1”, communication a level “0”, and consciousness facet a level “0” based on the Veteran’s May 2017 VA examination. Here, the highest level of evaluation for any facet is 2, which equates to a 40 percent rating. While the memory, attention, concentration, and executive functions are covered by his PTSD rating (again as spelled out in the December 2015 rating decision), the impairment in judgment facets are not expressly covered by his PTSD rating. Thus, a separate rating is warranted as of the date of the evidence of these symptoms, i.e., the date of the VA exam – 7May 19, 2017. The Board recognizes that the Veteran testified to additional limitations of vision problems and motor activity deficits with the use of a finger. The Board notes that these additional symptoms would approximately warrant a level “1” under the motor activity facet and a level “1” in the subjective symptoms facet beginning in approximately May 2019. However, such ratings would not afford the Veteran a higher rating that 40 percent. Based upon the foregoing, the Board finds that a noncompensable rating is prior to May 19, 2017, and a 40 percent rating thereafter is warranted for his TBI. See 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.159, 3.921, 4.1-4.16, 4.14, 4.124a, DC 8045. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.