Citation Nr: 21027625 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-39 136 DATE: May 6, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for a traumatic brain injury (TBI) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected disabilities is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the facets of the Veteran's TBI residuals have not been manifested by worse than a level 3 impairment during the rating period. 2. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8045. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2002 to July 2002. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran is in receipt of a 100 percent rating from November 12, 2014. This matter was previously before the Board in April 2019 when it was remanded for further development. In this regard, the Board finds that the post-Remand development substantially complied with the Remand requests. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial rating in excess of 70 percent for a traumatic brain injury (TBI) is denied. The Veteran contends he is entitled to an initial rating in excess of 70 percent for his service connected TBI. The Veteran's TBI is rated 70 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8045 for cognitive impairment from November 12, 2014. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: 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. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include 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 each individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." 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, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a 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." These facets are memory, attention, concentration and executive function, judgment, social interaction, orientation, motor activity, visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other subjective symptoms. 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: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. In this regard, it is important for the Veteran to understand that the evaluation of a TBI is highly multifaceted. The current version of Diagnostic Code 8045 contains the following relevant notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. 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. 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. 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. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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 Diagnostic Code 8045. 38 C.F.R. § 4.124a. The Board notes a separate 30 percent rating is assigned for posttraumatic headaches associated with TBI from November 12, 2014. This rating is not currently on appeal before the Board and will therefore not be considered in this decision. Based on a review of the record, the Board finds the most probative evidence of record shows the facets of the Veteran's TBI residuals (other than the separately rated headaches) have not been manifested by worse than a level 3 of impairment since November 12, 2014. Accordingly, the Board finds the criteria for a rating in excess of 70 percent are not met at any time during the pendency of the appeal. In this regard, the available medical evidence and statements from the Veteran do not show there has been objective evidence of severe impairment of memory, attention, concentration, or executive functions; severely impaired judgment; severely inappropriate social interaction; consistent disorientation to two or more of the four aspects; severely decreased motor activity due to apraxia; severely impaired visual spatial orientation; complete inability to communicate either by spoken or written language; or a persistently altered state of consciousness. For instance, the Veteran was provided a VA TBI examination in September 2015. The examiner noted the Veteran's TBI residuals have not been manifested by worse than a level 3 impairment. The Veteran also had a VA TBI examination in July 2019. His symptoms showed improvement in that the TBI residuals had not been manifested by worse than a level 2 impairment. The Board finds the VA examiners' opinions are highly probative because they were based on a review of the record and examination of the Veteran. While the Veteran reported various symptoms, the examination reports that addressed the severity of these reported symptoms show they have not been manifested by worse than a level 3 of impairment. The Veteran's TBI residuals have not been shown to be "total" for one or more facets, and therefore he is not entitled to a 100 percent rating. It is important to note that nothing above suggests that the Veteran was not having problems with his TBI from November 12, 2014 to the present. A 70 percent rating reflects the severity of the TBI residuals (other than the separately rated headaches), and the Board is only addressing the degree of impairment based on the standards above, nothing more. For the reasons explained above, the Board finds the preponderance of evidence is against finding an increased rating at any time throughout the period on appeal. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for an initial disability rating in excess of 70 percent for the Veteran's TBI residuals (other than the separately rated headaches) are not met, and the appeal must be denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected disabilities is granted. The Veteran claims that his service-connected disabilities have prevented him from working. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a) (2016). The Veteran meets the criteria as of November 12, 2014 for a schedular TDIU as his TBI is rated 70 percent disabling. In addition to his TBI, the Veteran is also service connected for the following: Unspecified trauma related disorder, rated as 50 percent disabling, Posttraumatic headaches associate with TBI, rated as 30 percent disabling, Lumbar strain, rated as 20 percent disabling, Left knee instability, rated as 10 percent disabling, Left knee strain, rated as 10 percent disabling, Tinnitus, rated as 10 percent disabling, Left lower extremity radiculopathy, rated as 10 percent disabling, and Right lower extremity radiculopathy rated as 10 percent disabling. For the following reasons, the Board finds the Veteran's service connected TBI renders him unable to work. The Veteran had previous work experience working on a Christmas tree farm prior to service. See June 2019 VA Examination. However, the Veteran has not participated in this work for many years. After the military, the Veteran worked in construction jobs. He was only able to hold onto a job for about a year and half before he experienced difficulties due to his service connected TBI. He struggled with forgetfulness while working, such as forgetting measurements, which impacted his ability to work. After not being able to continue in the construction field, the Veteran took a job with his wife's dog rescue business. The highest level of education completed by the Veteran is 12th grade. He does not have any college education. The June 2019 VA examiner indicated the Veteran has difficulties with memory, which would significantly impact his ability in most occupational environments. He also has a difficult time learning new material and would need significant repetition for this learning to occur. Additionally, his forgetfulness would make it difficult for him to complete occupational tasks as they arise. The Board finds that the evidence, when taken as a whole, demonstrates the Veteran is unable to work due to his service connected TBI and therefore, a TDIU will be granted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Holcombe, Lauren 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.