Citation Nr: 21027247 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-50 769 DATE: May 5, 2021 ORDER Service connection for neurotoxic vestibulopathy/limbic encephalopathy, claimed as neurological effects of mefloquine (an anti-malarial medication), is denied. An initial disability rating higher than 10 percent for service-connected traumatic brain injury (TBI) with residual concussion is denied. FINDINGS OF FACT 1. There is no currently diagnosed neurotoxic vestibulopathy and/or limbic encephalopathy. 2. For the entire rating period from August 23, 2015, the TBI with residual concussion was manifested by mild memory loss with concentration trouble and easy distraction, normal judgment, occasionally inappropriate social interaction, occasional disorientation to person, time, place, or situation, normal motor activity, normal visual special orientation, subjective symptoms of anxiety that do not interfere with work or activities of daily living, neurobehavioral effects that do not interfere with workplace interaction, normal communication, and normal consciousness. CONCLUSIONS OF LAW 1. The criteria for service connection for neurotoxic vestibulopathy and/or limbic encephalopathy, also claimed as neurological effects of mefloquine, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial disability rating higher than 10 percent for TBI with residual concussion have not been met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1992 to July 1996. This matter is on appeal from a November 2015 rating decision. In December 2020, the Veteran and his spouse testified at a virtual Board hearing before the undersigned. The Board finds that the duties to notify and assist in this case have been satisfied. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because there is no current diagnosis of neurotoxic vestibulopathy or limbic encephalopathy, the presumptive service connection provisions are not applicable. 1. Service connection for neurotoxic vestibulopathy/limbic encephalopathy is denied. The Veteran contends that he currently has neurotoxic vestibulopathy and/or limbic encephalopathy due to taking mefloquine (i.e., an anti-malarial medication) during service. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding of currently diagnosed neurotoxic vestibulopathy or limbic encephalopathy. The service treatment records, which are complete, show no neurological symptoms or disability therein, to include neurotoxic vestibulopathy or limbic encephalopathy related to taking an anti-malarial medication, and the neurological system was clinically evaluated as normal at service separation. See May 1996 service separation examination report; see also May 1996 service report of medical history (wherein the Veteran checked "no" when asked if he had neuritis, loss of memory or amnesia, nervous trouble of any sort, and periods of unconsciousness). The post-service treatment records included in the record are absent of any diagnosis or treatment for neurological disability other than the service-connected TBI residuals, including any neurotoxic vestibulopathy or limbic encephalopathy. While the Veteran believes that some of the current neurological symptoms he experiences may be related to the anti-malarial medication he took during service and may have exacerbated his TBI symptoms, there is no competent evidence of record that attributes any current neurological symptoms to the in-service consumption of anti-malarial medication. The medical articles on neurotoxic vestibulopathy and the use of mefloquine submitted by the Veteran do not show that he is currently diagnosed with either neurotoxic vestibulopathy or limbic encephalopathy. Moreover, all the current neurological symptoms exhibited by the Veteran are part of, and have been considered when rating, the service-connected posttraumatic stress disorder (PTSD) or the service-connected TBI residuals. There is no other diagnosed neurological disability or neurocognitive disability apart from the already service-connected PTSD and service-connected TBI residuals. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). Because a current disability of neurotoxic vestibulopathy or limbic encephalopathy is not demonstrated in this case, disability benefits are not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. An increased rating higher than 10 percent for TBI with residual concussion is denied. Disability ratings are determined by the application of the VA Schedule for 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For the entire initial rating period on appeal (i.e., from August 23, 2015), TBI with a concussion residual have been rated at 10 percent under the criteria at 38 C.F.R. § 4.124a, DC 8045 for residuals of traumatic brain injury. Under DC 8045, there are three main areas of dysfunction listed 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. Adjudicators are to rate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to rate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, they are to separately rate any residual with a distinct diagnosis that may be rated under another DC, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Adjudicators are to rate emotional/behavioral dysfunction under 38 C.F.R. § 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, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. In this case, service connection has been established for PTSD with a 70 percent rating effective from July 19, 2001. Adjudicators are to rate physical (including neurological) dysfunction 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, adjudicators are to rate under the most appropriate DC. Adjudicators are to rate each condition separately, as long as the same signs and symptoms are not used to support more than one rating and combine under § 4.25 the ratings for each separately rated condition. The rating assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the rating for a single condition for purposes of combining with other disability ratings. 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 5th 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. Adjudicators are to assign a 100-percent rating if "total" is the level of evaluation for one or more facets. If no facet is rated as "total," adjudicators are to assign the overall percentage rating 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 rating if 3 is the highest level of evaluation for any facet. Id. The rating assigned is 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 rating is assigned for all the applicable facets. A rating 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 rated separately. After review of all the lay and medical evidence of record, the Board finds that the criteria for an initial rating higher than 10 percent for TBI with a residual concussion are not met or approximated for any period. Throughout the initial rating period, the TBI residuals are manifested by the following symptoms with level of impairment for each facet in parentheticals: mild memory loss with concentration trouble and easily distracted (1), normal judgment (0), occasionally inappropriate social interaction (1), occasional disorientation to person, time, place, or situation (1), normal motor activity (0), normal visual special orientation (0), subjective symptoms of anxiety that do not interfere with work or activities of daily living (0), neurobehavioral effects (i.e., easily angered and easily lose temper) that do not interfere with workplace interaction (0), normal communication (0), and normal consciousness (0). See November 2015 VA examination report. At the Board hearing, the Veteran testified that he was distracted during the November 2015 VA examination (which he mistakenly referred to as the 2013 neuropsychological evaluation) and believes that the 2018 neuropsychiatric examination report is a better reflection of his neurological symptoms and that his executive function is moderately to severely impaired. The spouse also testified that the Veteran has difficulty completing tasks, difficulty with attention, and short-term memory problems, and loses track of time (i.e., analogous to concentration problems) that she believes are manifestations of the TBI. The Board has considered the March 2018 neuropsychological evaluation report, which specifically reads that the Veteran showed evidence of mild impairment in attention and executive functioning and mild weaknesses in information processing speed and nonverbal learning and memory; therefore, the mild level of severity of executive function, attention, memory, and concentration as reflected on the March 2018 private neuropsychological evaluation report is consistent with the November 2015 VA examination finding of mild memory loss, attention, concentration, or executive functions and reflected in the "1" level of impairment for that facet. See also May 2018 letter from a private neuropsychologist (noting that the Veteran's neurocognitive disorder was characterized by mild impairments in attention and executive functioning and mild weaknesses in information processing speed). There is no credible evidence showing that the level of impairment for that facet of TBI cognitive impairment is greater than mild. Although the Veteran has asserted that his executive function is moderately to severely impaired due to the TBI rather than mild, and he and his spouse have presented hearing testimony in support of the assertion, the assertion that the impairment of executive function, memory, concentration, and attention is greater than mild is merely subjective lay opinion and contrary to the competent medical evidence showing no greater than mild impairment of executive function due to the TBI. Moreover, the 70 percent rating criteria for PTSD already considers short and long-term memory impairment (including forgetting to complete tasks), as well as difficulty in understanding complex commands, so any higher degree of memory, attention, and concentration impairment that may be present is already contemplated in the 70 percent schedular rating. The overall percentage rating is assigned based on the level of the highest facet demonstrated, and the highest level of severity for any facet in this case is "1," which is consistent with a 10 percent rating under the rating criteria; therefore, the criteria for an initial rating higher than 10 percent under DC 8045 for TBI with a residual concussion are not met or approximated for any period, and the claim must be denied. (Continued on the next page) The Board finds that neither the Veteran nor the record has raised the issue of an extraschedular rating for the initial rating appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.