Citation Nr: 21024811 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 13-26 291 DATE: April 26, 2021 ORDER Entitlement to an initial rating higher than 50 percent for generalized anxiety disorder is denied. Entitlement to an initial compensable rating for headaches is denied. Entitlement to an initial rating higher than 10 percent prior to January 26, 2021, and higher than 40 percent thereafter, for residuals of a traumatic brain injury (TBI) is denied. FINDINGS OF FACTS 1. The severity, frequency, and duration of the Veteran’s generalized anxiety disorder symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. During the appeal period, the Veteran experienced migraines with less frequent attacks. Her migraines did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. 3. Prior to January 26, 2021, the Veteran’s TBI is manifested by a complaint of mild loss of memory, attention, concentration, or executive functions, but without objective evidence on testing. 4. From January 26, 2021, there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 50 percent for generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9400. 2. The criteria for an initial compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. 3. The criteria for an initial rating higher than 10 percent for the period prior to January 26, 2021 and higher than 40 percent thereafter for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 2000. This appeal comes from a December 2017 rating decision. The Veteran filed a Notice of Disagreement (NOD) in March 2018, which resulted in a December 2019 Statement of the Case (SOC). She filed a substantive appeal in February 2020. The claims were previously before the Board of Veterans’ Appeals (Board) in June 2020. At that time, the claims were remanded to obtain contemporaneous examinations. Increased Ratings A disability rating is determined by the application of VA’s Schedule Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). 1. Entitlement to an initial rating higher than 50 percent for generalized anxiety disorder is denied. The Veteran contends that increased rating for generalized anxiety disorder, which is currently assigned a 50 percent rating under DC 9400, is warranted. Under DC 9400, a 50 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating Id. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Therefore, VA must consider all symptoms of a veteran’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. In this case, the evidence of record does not support rating higher than 50 percent for generalized anxiety disorder. As the analysis turns on the Veteran’s level of occupational and social impairment, primarily whether there are “deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood,” the Board will organize its analysis around these areas. Mood The rating criteria provide examples of the type and degree of the symptoms, or their effects, that would justify a 70 percent rating versus a 50 percent rating with respect to the area of mood. A 50 percent rating is warranted for symptoms such as flattened affect, panic attacks more than once per week, and disturbances of motivation and mood. The more severe level of impairment warranting a 70 percent rating is characterized by near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, suicidal ideation, neglect of appearance and hygiene, and difficulty adapting to stressful circumstances. 38 C.F.R. § 4.130, DC 9400. In this case, the medical evidence reflects that the Veteran’s condition is manifested by anxiety, panic attacks and depression. The severity and frequency of these symptoms, however, does not rise to the level of causing deficiency in the area of mood. In October and December 2012, the Veteran reported that she was doing well, and her mood was noted to being congruent. Similarly, in March 2013 she reported feeling more positive and less depressed. However, during a December 2013 evaluation, the examiner found that the Veteran has moderate to severe level of depression. Conversely, during an evaluation in November 2015, she reported doing better at work and even passing an exam. In September 2016, the Veteran indicated that her medication was helping with her panic attacks. A November 2016 VA examination reflects that the Veteran is often anxious at work and she has depressed mood. She again reported anxiety and depression during the September 2017 VA examination. In fact, the Veteran indicated that she would have to leave work because of her anxiety at times. That examination also noted that her panic attacks occur weekly or less often. VA treatment records from May 2018 and April 2019 reflect that the Veteran’s anxiety was controlled. Nevertheless, she still reported depression that last for few hours. In July 2019, the Veteran stated that her depression symptoms “come and go,” but in October 2019 she reported that she is “depressed all the time.” During a November 2019 session, the Veteran’s mood was described as dysphoric. In December 2019, the Veteran expressed being anxious about her job and her family. Subsequently, during a March 2020 evaluation, she reported “persistent decline in motivation.” She continued “feeling overwhelmed and anxious” in July 2020. The Veteran also reported having “minor anxiety episodes.” On the other hand, in September 2020, the Veteran reported being depressed for two weeks, but generally stated that “she does not feel depressed as frequently and as intensely” as before. Furthermore, she reported that she was not feeling depressed during a September 2020 evaluation. However, during a January 2021 examination, the Veteran was anxious and had depressed mood. The exam also shows that she has panic attacks that occur more than once a week. During this exam, the Veteran reported episodes of acute anxiety, which is alleviated by medication. In sum, the examinations and VA treatment records in the claims file show that the Veteran has disturbed mood and motivation due to her anxiety, depression, and panic attacks. The severity of the Veteran’s anxiety, panic attacks and depression wax and wane throughout the appeal period. However, the evidence does not reflect that her panic attacks are continuous or that she is unable to function independently because of her depression. While the evidence shows that she has acute anxiety, the severity and frequency of her anxiety is not on par with near-continuous panic or depression affecting her ability to function independently, appropriately, and effectively. Overall, the VA mental health evaluations in the record from the appeal period in question all show that the Veteran acted appropriately during her sessions. The evidence also does not show that she neglected her appearance or hygiene. Nor is there evidence of suicidal ideation. Therefore, the Board concludes the evidence of record does not show that the Veteran’s disability is characterized with symptoms that are more severe than disturbance of mood and motivation. As such, the Veteran’s mood impairments are fully considered by the 50 percent rating assigned and their severity does not rise to the level contemplated by a 70 percent disability rating. Family/ Interpersonal relations The rating criteria differentiate between the type and degree of the symptoms, or their effects, that would justify a 50 percent rating (difficulty in establishing and maintaining effective work and social relationships) versus a 70 percent rating (inability to establish and maintain effective relationships). In this case, the Veteran has been married for over 36 years. The Veteran has reported that her anxiety and depression have affected her relationship. See January 2021 VA examination. However, she generally reported having good relationship with her husband throughout the appeal period. See e.g. November 2016, September 2017. While the Veteran reported some trouble with her relationship with an adult daughter, she did not attribute this to her psychiatric condition. See December 2019 Psychiatric Progress Note. However, during a November 2016, the Veteran reported that she has good relationships with her children. The Board recognizes that the November 2016 VA examiner checked the box that indicates that the Veteran’s condition is manifested by inability to establish and maintain effective relationships. However, considering the Veteran has been married for decades and her reports of having good relationships with her family, the Board does not find that she is unable to establish and maintain effective relationships. Rather, she has difficulty establishing and maintaining relationships as shown by the November 2017 and January 2021 examination reports, which is a level of impairment fully contemplated by the 50 percent rating assigned. In general, the Board concludes that the evidence of record does not establish deficiency in the area of family as contemplated by a 70 percent rating. Work/School With respect to the area of work, the rating criteria show that a 50 percent rating is characterized by symptoms that result in reduced reliability and productivity, to include difficulty establishing and maintaining effective work relationships. The more severe level of impairment warranting a 70 percent rating is characterized by difficulty in adapting to stressful circumstances including work or a work like setting or an inability to establish and maintain effective work relationships. In this case, in October 2014, the Veteran reported breaking down under pressure at work. The Veteran’s November 2016 VA examination report reflects that she often feels anxious at work. During the September 2017 VA examination, she reported leaving work because of her anxiety. She also indicated that she has difficulty socializing at work. See September 2017 VA examination. In December 2019, the Veteran expressed frustration because she was passed over for promotion. See December 2019 Psychiatric Progress Note. The examiners from November 2016, September 2017, and January 2021 examinations noted that the Veteran’s psychiatric condition causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board recognizes that the Veteran may have difficulty adapting to stressful circumstances due to her anxiety and some difficulty forming relationships with coworkers. However, when viewed holistically, the Board finds that the medical evidence of record does not depict a disability picture, where she is unable to form relationships at work. Nor do her symptoms cause more than reduction of reliability and productivity. Therefore, the Board concludes that the evidence does not establish a deficiency in the area of work to the level contemplated by a 70 percent rating. Judgment The rating criteria differentiate between the type and degree of the symptoms, or their effects, that would justify a 50 percent rating (impaired judgment versus a 70 percent rating (impaired impulse control, such as unprovoked irritability with periods of violence). The Veteran reported irritability during the November 2016 VA examination. Furthermore, TBI evaluation from November 2016 reflects that she is irritated by minor issues and insists that her way is the only right way of doing things. In addition, the January 2021 TBI examination found that she has mildly impaired judgement, to the extent she has difficulty making complex decisions in short period of time. Her judgment was consistently marked as intact during multiple therapy sessions otherwise. Considering the totality of the evidence of record, the Board concludes that the Veteran has impaired judgement. But her impaired judgement is not of such severity as to result in impaired impulse control. Therefore, the Veteran has no more than an impaired judgment that is specifically contemplated by a 50 percent rating. Thinking The rating criteria provide examples of the type and degree of the symptoms, or their effects, that would justify a 70 percent rating versus a 50 percent rating with respect to the area of thinking. A 50 percent rating is warranted for symptoms such as circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; impairment of short- and long-term memory; and impaired abstract thought. The more severe level of impairment warranting a 70 percent rating is characterized by obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; and spatial disorientation. In this case, the VA mental health evaluations in the record from the appeal period in question do not show that the Veteran’s speech is intermittently illogical or that she has obsessional ritual that interfere with routine activities. As addressed in detail below, the Veteran’s TBI evaluations have noted the Veteran may be disoriented at times. Considering that the Veteran’s psychological evaluations did not find spatial disorientation, the Board concludes that such symptom should be evaluated in relation to the Veteran’s TBI as explained in detail below. In general, the Veteran’s generalized anxiety disorder is not manifested by symptoms that cause deficiency in her thinking. Conclusion The Board finds that the criteria for a rating in excess of 50 percent are not met, as the preponderance of the probative lay and medical evidence shows that the Veteran’s generalized anxiety disorder did not produce symptoms of such severity, duration, or frequency to result in occupational and social impairment with deficiencies in most areas. Therefore, the Board finds that the current 50 percent disability evaluation fully contemplates the severity of the Veteran’s disability, and a higher rating is not warranted. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38C.F.R. §§4.3, 4.7. 2. Entitlement to an initial compensable rating for headaches is denied. The Veteran contends that she is entitled to a higher rating for headaches, which is currently assigned a noncompensable rating under DC 8100. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines 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 migraine attacks that typically produce extreme exhaustion or powerlessness. In a recent precedential case, the Court held DC 8100 contemplates more than just headache symptoms and requires that VA consider all symptoms the veteran experiences as a result of migraine attacks. Holmes v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020) The Board concludes that the Veteran’s migraines have occurred with less frequent attacks during the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. The Veteran underwent VA examination in September 2017, where she reported that she gets headaches with light sensitivity twice per week. These headaches last for 1 to 2 hours. The examiner indicated that she has characteristic prostrating attacks with less frequent attacks. Her headaches cause her to miss work 1 or 2 times a month. VA treatment records from January 2019 reflect that the Veteran’s headaches were characterized as mild and manageable. In addition, a January 2021 VA examination found that her headaches are manifested by nausea, sensitivity to light and sound, changes in vision, as well as sensory changes. During this examination, the Veteran reported that the frequency of her headaches were still about two times a week. She indicated that they last for 1 or 2 days. The Veteran’s headaches cause functional limitation to the extent she has difficulty focusing and completing task. The Veteran, however, does not report extreme exhaustion and powerlessness. Nor does the January 2021 examiner characterize her headaches as prostrating. As noted above, a compensable rating under DC 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. In this case, at worst, the Veteran’s headaches are found to be prostrating with less frequent attacks by the September 2017 examiner, which is consistent with the noncompensable disability rating. The medical evidence otherwise does not reflect that her symptoms are of such severity, frequency, or long lasting as to cause exhaustion, helplessness, or powerlessness. In other words, the severity, frequency, and functional loss caused by her non-headache symptoms does not rise to the level contemplated by a 10 percent rating. When reviewed holistically, the medical evidence does not reflect that the Veteran’s disability picture more nearly approximates migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. Thus, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. 3. Entitlement to an initial rating higher than 10 percent prior to January 26, 2021 and higher than 40 percent thereafter for TBI is denied. The Veteran contends that an increased rating for TBI is warranted. Her TBI is currently rated under DC 8045. Under DC 8045, there are three main areas of dysfunction that may result from a TBI: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. DC 8045 includes a table titled “Evaluation of Cognitive Impairment and Other Residuals of a [TBI] Not Otherwise Classified,” which addresses 10 facets of a TBI. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level- the highest level of impairment-labeled as “total.” A level 0 impairment is consistent with a 0 percent disability rating, level 1 with 10 percent rating, level 2 with 40 percent, level 3 with 70 percent disability rating, and the highest level (“total) with a 100 percent disability rating. The overall evaluation assigned is based upon the highest level of severity for any facet. 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. Subjective symptoms that are residuals of a TBI, whether they are part of cognitive impairment, should be evaluated under the subjective symptoms facet. However, VA is to separately evaluate 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. In this instant, there is a diagnosis of migraine that is evaluated separately. See January 2021 VA examination. Where there is a diagnosis of mental disorder, emotional, and behavior dysfunctions are to be evaluated under 8 C.F.R. § 4.130, which is the General Rating Formula for Mental Disorders. However, Note (1) to DC 8045 provides that more than one evaluation based on the same manifestations of a condition may not be assigned under multiple DCs. Therefore, if the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of DC that allows a better assessment of overall impairment is to be assigned. In this case, the Veteran has a diagnosis of generalized anxiety disorder. See January 2021 VA examination. Medical and lay statements evidence of record shows that the Veteran’s condition is manifested by memory and concentration impairment. According to the January 2021 VA examination report, it is impossible to differentiate which portion of the Veteran’s symptoms is attributable to each diagnosis, including TBI residuals. Resolving reasonable doubt in the Veteran’s favor, evaluating the Veteran’s impaired memory and concentration under DC 8045 will likely result in better assessment of the Veteran’s overall disability picture. The Veteran’s TBI is currently rated as 10 percent disabling prior to January 26, 2021 and 40 percent thereafter. The preponderance of the evidence of record weighs against assigning an increased rating. The Veteran consistently reported memory loss throughout the appeal period. During a December 2013 evaluation, the Veteran indicated that she has difficulty with her memory and concentration. Particularly, the Veteran reported that she at times forgets where she is going when driving. The evaluator found that she has mild to moderate memory encoding deficit. However, the Veteran’s performance on objective memory testing was average. She continued to report memory and concentration problems during the November 2016 and September 2017 VA examinations. During both examinations, the examiners concluded that the Veteran had mild loss of memory, attention, concentration, or executive functions, but without objective evidence on testing. Therefore, the December 2013, November 2016, and September 2017 evaluations all found a level 1 impairment of memory attention, concentration, executive functions, which is consistent with the 10 percent rating currently assigned. In addition, the November 2016 exam found that the Veteran is occasionally disoriented to place and she has mildly impaired visual spatial orientation to the extent she occasionally gets lost in unfamiliar surroundings and relies on GPS. These are consistent with a level 1 impairment in the orientation and visual spatial orientation facets. Furthermore, the November 2016 examiner noted that the Veteran has anxiety, frequent insomnia, hypersensitivity to light, and dizziness. Thus, the examiner concluded that the Veteran has three or more subjective symptoms that mildly interfere with work. The Board recognizes that the Veteran’s anxiety and sleep impairment are symptoms contemplated in the disability rating assigned for her generalized anxiety disorder. Similarly, the disability rating assigned to the Veteran’s migraines contemplated sensitivity to light during her headaches. Notwithstanding, even if the Board was to consider these subjective symptoms, the November 2016 evaluation shows no more than a level 1 impairment that warrants a 10 percent rating. Similarly, the November 2016 VA examination found that the Veteran has one or more neurobehavioral effects that frequently interfere with workplace and/or social interactions. The examiner explained that the Veteran is “irritated by minor issues; will change things for no reason; sometimes does not feel like doing anything; flips moods for no reason; her way is the right [way].” The September 2017 examiner also found that the Veteran has one or more neurobehavioral impairment that occasionally interferes with workplace and/or social interaction due to her anxiety and depression. The Board has not considered these neurobehavioral impairments because the Veteran is assigned a 50 percent disability rating for her generalized anxiety disorder, which fully contemplates disturbances of motivation and mood, impaired judgement, and difficulty maintaining effective work and social relationships. Moreover, during the December 2013 evaluation, the examiner noted moderate to severe language deficit, but there was no indication that the Veteran’s impairment rises to the level of causing an inability to communicate to warrant a finding of a level 2 impairment in the communication facet. Notably, the November 2016 and September 2017 VA examinations show that the Veteran was able to communicate by spoken and written language and comprehend spoken and written language. Overall, the Board finds that the totality of the medical evidence of record for the appeal period prior to January 26, 2021 reflects that the Veteran had a level 1 impairment of memory, attention, concentration, or executive functions, as well as a level 1 impairment in the orientation and visual spatial orientation facets. These results are consistent with a 10 percent rating, but no higher. As to the period after January 26, 2021, the totality of the evidence of record does not establish that the severity of the Veteran’s TBI symptoms rise to a level 3 impairment in any of the 10 facets considered to warrant a rating higher than 40 percent. To that end, the Veteran underwent a January 2021 VA examination that found objective evidence of mild loss of memory, attention, concentration, or executive function. This is consistent with level 2 impairment. The exam also found that she has mildly impaired judgement, to the extent she has difficulty making complex decisions in short period of time. She was also found to have mildly impaired visual spatial orientation because she reports having trouble navigating new areas despite having GPS. The examiner noted that the “Veteran can become irritable, impulsive and apathetic.” Based on these symptoms the examiner concluded that the Veteran has one or more neurobehavioral effects that occasionally interfere with workplace and/or social interactions. As noted above, disturbance of mood and motivation, as well as impaired judgment are contemplated in the rating assigned to the Veteran’s service-connected generalized anxiety disorder. As to the impaired visual spatial orientation, the examination shows a level 1 impairment. Thus, the memory, attention, concentration, or executive facets yields the highest level of impairment, which is consistent with a 40 percent rating, but no higher. In general, the medical evidence of record does not reflect a level 3 impairment in any of the 10 facets to warrant a higher rating. The Veteran’s representative contends that the medical evidence of record does not reflect a change in the severity of the Veteran’s memory problems throughout the appeal period, as such a 40 percent rating should be assigned for the entire appeal period. Specifically, the attorney states that “[t]he 2013 examination does discuss memory and concentration impairment, however, that examiner could not sufficiently link these objectively-noted deficits to [the Veteran’s] TBI.” See February 2021 Correspondence. The Veteran’s representative further argues that the Board should assign the September 2017 VA examination less probative weight because it is inconsistent with the January 2021 and December 2013 evaluations to the extent it did not find objective evidence of memory and concentration impairment. The attorney’s argument, however, disregards the objective testing conducted during the December 2013 evaluation that found that the Veteran’s memory was within average range. Nor does the argument consider the November 2016 VA examination that also did not note objective evidence on testing of loss of memory, attention, concentration, and executive functions, which is a finding consistent with the September 2017 VA examination. For these reasons, the Board disagrees with the contention that a staged rating is not warranted. In summary, the severity of the Veteran’s cognitive impairment, particularly her memory, attention, and concentration problems, is consistent with a 10 percent rating, but no higher, prior to January 26, 2021 and 40 percent rating, but no higher, thereafter. The Board is sympathetic to the Veteran’s lay statements that her disabilities are worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). She is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities have been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED