Citation Nr: 21024979 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-29 246 DATE: April 27, 2021 ORDER Entitlement to service connection for headaches is denied. Entitlement to an initial rating in excess of 10 percent for service-connected cerebral concussion/mild traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a disability manifested by dizziness is remanded. FINDINGS OF FACT 1. The Veteran’s headaches are a symptom of his service-connected TBI and not a separate and distinct disability that can be service connected. 2. From October 31, 2012 , the Veteran’s TBI residuals are shown to have been productive of mild memory loss, normal judgment, routinely appropriate social interaction, unimpaired orientation, normal visual spatial orientation, subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family or other close relationships, and one or more neurobehavioral effects that do not interfere with workplace interaction, social interaction. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a headache disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for an initial evaluation in excess of 10 percent for service connected TBI have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from December 1969to December 1971 and active military service from January 1981to January 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appeal was remanded in July 2018 for additional development. It has since been returned to the Board for further appellate consideration. In an October 2020 rating, the RO granted service connection for a cervical strain with degenerative disc disease, effective October 31, 2012. In a subsequent October 2020 rating decision, the RO granted service connection for insomnia, effective October 31, 2012. This represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). During the pendency of the appeal, the RO increased the disability rating for the Veteran’s residuals, cerebral concussion/mild TBI with insomnia to 10 percent, effective October 31, 2012. Because the RO did not assign the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for headaches is denied. The Veteran contends his headaches are residuals of his TBI. The Veteran received a VA examination in October 2020, the Veteran was diagnosed with cerebral concussion/mild TBI with headaches associated with TBI and concussion. The Veteran endorsed symptoms including occasional headaches and a stiff neck, trouble sleeping, problems concentrating, slight memory loss and depression, irritability, and is bothered by a lot of light and noise. In the October 2020 medical opinion, the VA examiner opined the Veteran’s current headaches are less likely than not a separate and distinct disability. The examiner explained headaches are known potential long-term sequela of cerebral concussion/TBI and did not appear to be present prior to the concussion/TBI in 1981. Additionally, the examiner stated the Veteran’s current headaches are symptoms of TBI itself, and not a separate and distinct disability. In an October 2020 rating decision, the RO specifically considered the Veteran’s headaches as a residual symptom of his service-connected TBI disability. Thus, with respect to the claims for headaches, the Board finds the weight of the evidence reflects this is a symptom of the Veteran’s already service-connected TBI and, as such have been considered in his assigned rating See 38 C.F.R. § 4.130; see also 38 C.F.R. § 4.14. As the headaches have not been shown to be separate and distinct disabilities from the Veteran's service connected TBI, service connection for such disabilities on a separate basis if not warranted. Accordingly, as the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application and the claims must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 2. Entitlement to an initial rating in excess of 10 percent for service-connected cerebral concussion/mild traumatic brain injury (TBI) is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptom that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran seeks an increased evaluation of his service connected TBI residuals which are currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 recognizes three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. 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 is to be evaluated under the table, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified (“TBI Table”). Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the TBI Table. Any residual with a distinct diagnosis that may be evaluated under another diagnostic code (such as migraine headache or Meniere’s disease) must be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the TBI Table. Emotional/behavioral dysfunction must be evaluated under § 4.130 (schedule of ratings for mental disorders) 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 TBI Table. 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. The list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluation should take place under the most appropriate diagnostic code. Each condition must be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition should be combined under § 4.25. The evaluation assigned based on the TBI Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Each of these areas of dysfunction may require evaluation under listed facets. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Each facet shall be assigned a level of impairment, ranging from 1 to 3. The disability rating assigned shall be based on the facet with the highest level of impairment. Id. The TBI Table contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from zero to three, 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. 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: zero = zero percent; one = 10 percent; two = 40 percent; and three = 70 percent. For example, a 70 percent evaluation is assigned if three is the highest level of evaluation for any facet. Id. In February 1981 the Veteran was in a motor vehicle accident and he suffered a TBI. A February 1981 service treatment record (STRs) notes he struck another vehicle on a wet road and his head struck the windshield causing a crack windshield. The Veteran was diagnosed with mild concussion. In his separation report of medical history, the Veteran indicated he had a head trauma and stiff neck. In September 2013, the Veteran underwent a VA examination for evaluation of residuals for TBI. The Veteran was diagnosed with mild TBI, no residuals and no functional limitations. Upon examination of the 10 facets, the examiner found the Veteran tested as normal for judgement, motor activity, visual special orientation, communication, consciousness, and social interaction is routinely appropriate. The examiner noted complaints of hearing loss and/tinnitus, visual impairment, dizziness/vertigo. The examiner noted current subjective symptoms of hearing loss, visual impairment, and dizziness/vertigo that are less likely as not caused by or related to mild TBI, and more likely related to other medical conditions. A September 2013 VA treatment record notes a diagnosis of mild TBI, resolved with no residuals and no functional limitations. The VA psychiatrist noted current subjective symptoms that are less likely as not caused by or related to mild TBI, and more likely related to other medical conditions. Also, the VS psychiatrist stated there are no known delayed symptoms due to mild TBI. In an October 2013 rating decision, service connection was granted for TBI. A 0 percent evaluation was assigned, effective October 31, 2012. The Veteran appealed. In the June 2014 Notice of Disagreement (NOD) the Veteran reported intermittent dizziness, moderate headaches, and frequent insomnia that interferes with his daily occupation. In his August 2105 substantive appeal (VA Form 9), the Veteran reported that his subjective symptoms included dizziness, headaches, and insomnia and that his symptoms had significantly limited his work week. In December 2019, the Veteran underwent another VA examination for mental disorders to assess the residuals of his TBI. The Veteran was diagnosed with chronic insomnia. The Veteran reported symptoms of a TBI which cause some impairment due to dizziness and nausea during the day as well as sleep disturbance at night. The examiner noted subjective symptoms of mental, physical or neurological conditions or residuals attributable to a TBI (such as migraine headaches or Meniere's disease, hearing loss and/or tinnitus, visual impairment, and dizziness/vertigo.). The examination report documented the examiner was not able to differentiate his TBI and insomnia symptoms. The Veteran received another VA examination in October 2020 for a review evaluation of residuals of his TBI. The Veteran reported occasional headaches and stiff neck, trouble sleeping, problem concentering, slight memory loss and depression, irritability, and is bothered by a lot of light and noise. Regarding memory, attention, concentration, and executive functions, the examiner noted that the Veteran complained of issues with mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. The Veteran’s judgement, social interaction, orientation, motor activity, visual special orientation, communication, and consciousness were all normal. There were three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The examiner noted that the Veteran had no neurobehavioral effects. The examiner noted residuals of erectile dysfunction and headaches, including migraine headaches. In an October 2020 rating decision, the RO increased the evaluation assigned to 10 percent, effective October 31, 2012. The Board finds that an increased evaluation in excess of 10 percent is not warranted. Based on the October 2020 examination the Veteran had a complaint of mild loss of memory and three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. This is rated as a “one” level of impairment under the diagnostic code. Under DC 8045, if no facet is evaluated as “total,” assignment of the overall percentage is based on the level of the highest rated facet. 38 C.F.R. § 4.124a, DC 8045. On the October 2020 examination, the Veteran’s highest rated facet was a “one.” This correlates to a 10 percent evaluation. As such, the Veteran is not entitled to an evaluation in excess of 10 percent. REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by dizziness is remanded. The Board finds remand is required for an addendum opinion. The October 2020 opinion is inadequate for decision-making purposes. If a disability existed at any point during the appeal period, or in close proximity to the claim for service connection, it will be considered a current disability even if it has since resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the October 2020 VA examination report noted the Veteran had symptoms of dizziness after his concussion which is a symptom of his concussion/TBI. The examiner stated the dizziness has since resolved. The examiner did not address whether the dizziness is a separate and distinct disability or a symptom of TBI. An adequate opinion should be sought that determines the following: 1) whether dizziness was present during the appeal period, reconciling any findings with October 2020 VA examination; and 2) whether the dizziness was caused or chronically worsened by his service-connected TBI or merely a symptom. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. 3. Obtain an addendum opinion regarding the etiology of any disability manifested by dizziness. The entire claims file must be made available and reviewed by the examiner. If an examination is deemed necessary, it shall be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran has separate and distinct disabilities manifested by dizziness that was caused or chronically worsened by his in-service cerebral concussion/TBI; or, if it is merely a symptom of his service-connected cerebral concussion/TBI. **The examiner is advised that, if a disability existed at any point during the appeal period, or in close proximity to the claim for service connection, it will be considered a current disability even if it has since resolved. A rationale for all opinions expressed must be provided. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.