Citation Nr: 21030801 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-52 345 DATE: May 19, 2021 ORDER Entitlement to an initial compensable rating for unspecified headaches is denied. An initial separate 10 percent disability rating, but not higher, for benign paroxysmal positional vertigo as a residual of a traumatic brain injury (TBI) is granted effective from January 15, 2016, subject to the laws and regulations governing the payment of monetary benefits. An initial rating in excess of 40 percent for residuals of TBI, to include insomnia, effective from October 13, 2020, is denied. An initial 40 percent disability rating, but not higher, for residuals of TBI, to include insomnia, is granted effective from January 15, 2016, to October 12, 2020, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The weight of evidence is against a finding that since January 15, 2016, the unspecified headaches have been manifested by characteristic prostrating attacks averaging once every two months. 2. The weight of evidence shows that the Veteran has benign paroxysmal positional vertigo as a residual of his TBI. 3. The weight of evidence shows that since January 15, 2016, the benign positional vertigo has been manifested by occasional dizziness. 4. The weight of evidence is against a finding that since October 13, 2020, the residuals of TBI, to include insomnia, have been manifested by inappropriate social interactions most or all of the time. 5. The evidence is in equipoise as to whether from January 15, 2016, to October 12, 2020, the residuals of TBI, to include insomnia, were manifested by frequently inappropriate social interactions. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for unspecified headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Code 8100 (2020). 2. The criteria for an initial separate 10 percent disability rating for benign paroxysmal positional vertigo as a residual of TBI effective from January 15, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.87, Diagnostic Code 6204 (2020). 3. The criteria for an initial disability rating in excess of 40 precent for residuals of TBI, to include insomnia, effective from October 13, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Code 8045 (2020). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 40 percent disability rating for residuals of TBI, to include insomnia, effective from January 15, 2016, to October 12, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1985 to July 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In January 2020, the Veteran testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge and a transcript of the hearing has been associated with the electronic claims file. In March 2020, the Board remanded the claims for further development. In a December 2020 rating decision, a RO assigned a 40 percent disability rating for residuals of TBI effective October 13, 2020. As the 40 percent disability rating is not the maximum rating available for residuals of TBI, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating 1. Entitlement to an initial compensable disability rating for unspecified headaches Governing law and regulations Where the issues involve the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case respect to the Veteran's claim for an increased initial rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 8100, a 50 percent rating is warranted for migraine headaches manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation requires symptomatology manifested by characteristic prostrating attacks occurring on an average of once per month over the last several months. A 10 percent disability rating is warranted for symptomatology manifested by characteristic prostrating attacks occurring on an average of once every two months over the last several months. A zero percent disability rating is warranted for symptomatology manifested by characteristic prostrating attacks occurring less frequently than once every two months over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating." The Board additionally observes that the United States Court of Appeals for Veterans Claims (the Court) has not undertaken to define "prostrating." Cf. Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack. According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." The rating criteria also do not define "inadaptability." However, the Court noted that nothing in Diagnostic Code 8100 required the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). Analysis In the July 2016 rating decision, a RO granted service connection for unspecified headaches effective January 15, 2016, and assigned an initial zero percent disability rating effective that same date. A May 2016 VA headaches examination report reveals that the examiner stated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. VA treatment records reveal that in November 2016 the Veteran denied having headaches and that in January 2018 he had headaches. An October 2020 VA headaches examination report reveals that the examiner stated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Board places great weight on the findings of the two VA examiners. The weight of evidence is against a finding that since January 15, 2016, the unspecified headaches have been manifested by characteristic prostrating attacks averaging once every two months. The preponderance of evidence is against the claim. Accordingly, an increased rating for unspecified headaches is not warranted, and the claim is denied. 2. Entitlement to a separate compensable rating for benign paroxysmal positional vertigo as a residual of TBI 3. Entitlement to an initial disability rating in excess of 40 percent for residuals of TBI, to include insomnia, effective October 13, 2020 4. Entitlement to an initial disability rating in excess of 10 percent for residuals of TBI, to include insomnia, prior to October 13, 2020 Governing law and regulations Under the current criteria, 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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 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. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, 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. Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Physical (including neurological) dysfunction is to be 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Each condition should be evaluated separately as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: 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. A 100-percent evaluation should be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. The 10 important facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" are as follows: (1) Memory, attention, concentration, executive functions; (2) Judgment; (3) Social interaction; (4) Orientation; (5) Motor activity; (6) Visual spatial orientation; (7) Subjective symptoms; (8) Neurobehavioral effects; (9) Communication; and (10) Consciousness. Id. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental 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. Id. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For subjective symptoms, the criteria for a "0" level of impairment are subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples include mild or occasional headaches or mild anxiety. The criteria for a "1" level of impairment are three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples include intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. The criteria for a "2" level of impairment are three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples include marked fatigability, blurred or double vision, and headaches requiring rest periods during most days. For peripheral vestibular disorders, a 10 percent disability rating is warranted for occasional dizziness and a 30 percent evaluation requires dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204. Diagnostic Code 6205 provides that Meniere's syndrome can be evaluated under either the rating criteria of Diagnostic Code 6205 or by separately evaluating vertigo, hearing impairment, and tinnitus, whichever results in a higher evaluation. Hearing impairment with vertigo less than once a month, with or without tinnitus, warrants a 30 percent disability rating. Hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus, warrants a 60 percent disability rating. Hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus, requires a 100 percent evaluation. 38 C.F.R. § 4.87, Diagnostic Code 6205. Analysis In the July 2016 rating decision, a RO granted service connection for residuals of TBI, to include insomnia, effective January 15, 2016, and assigned an initial 10 percent disability rating effective that same date under Diagnostic Code 8045. In a December 2020 rating decision, a RO assigned a 40 percent disability rating for residuals of TBI, to include insomnia, effective October 13, 2020, under Diagnostic Code 8045. Turning to physical impairment, an October 2020 VA residuals of TBI examination report reflects that the residuals included seizures and dizziness/vertigo. With regard to seizures, an October 2020 VA seizure examination report reveals that the Veteran had a single episode of a seizure in 1995 that has since resolved with no recurrent episodes of seizures. The examiner noted that the Veteran did not currently have any type of seizure activity. In the absence of evidence of seizures since January 15, 2016, a separate rating for seizures is not warranted. As for dizziness/vertigo, an October 2020 VA ear examiner did not diagnose Meniere's syndrome. Therefore, consideration under Diagnostic Code 6205 is not warranted. The October 2020 VA ear examiner, however, diagnosed benign paroxysmal positional vertigo. Thus, consideration under Diagnostic Code 6204 is warranted. The examiner noted that the Veteran had hearing impairment with vertigo one to four times a month. The examiner noted that the date of onset of the peripheral vestibular condition was 2015. Accordingly, a 10 percent disability rating for benign paroxysmal positional vertigo is warranted effective January 15, 2016, under Diagnostic Code 6204. With regard to whether a higher rating is warranted under Diagnostic Code 6204, the October 2020 VA examiner did not indicate that the Veteran had any staggering. Similarly, the Veteran, a physician, did not report any staggering. In the absence of occasional staggering, a 30 percent disability rating under Diagnostic Code 6204 is not warranted. As for cognitive and emotional/behavioral impairment, the Veteran underwent a VA mental disorders examination in August 2020 that was performed by a doctor of psychology. The Veteran reported at the October 2020 VA examination that he was recently evaluated for posttraumatic stress disorder (PTSD). In a March 2021 statement, the Veteran reported that he was told by the doctor of psychology who evaluated him for PTSD in the city where underwent the August 2020 VA mental disorders exam that the exam was "positive, +". To the extent that the Veteran, a physician, is reporting that the doctor of psychology who performed the August 2020 VA examination diagnosed PTSD, the Veteran is competent to report that diagnosis. The Veteran worked as a primary care doctor but he is also certified in addiction medicine. The August 2020 VA mental disorders examination report reflects that the examiner did not diagnose a current mental disorder. The report shows that the examiner was instructed to complete a PTSD questionnaire if the Veteran has a diagnosis of PTSD. The examiner did not complete such a questionnaire. The Veteran reported his nightmares to the examiner. The examiner reviewed the October 2020 VA TBI examination report after conducting the examination in August 2020 and stated that there was no psychiatric condition diagnosed at this time. The examiner stated that the insomnia is associated with the TBI but that insomnia does not qualify as a mental disorder at this time and instead is a symptom of TBI. Moreover, VA treatment records reflect that a PTSD screen was negative in July 2016 and that in January 2018 the Veteran denied any PTSD symptoms. Furthermore, the October 2020 VA TBI examination report reveals that the Veteran had a complaint of a mild memory loss. The Board places greater weight on the lack of a diagnosis of PTSD in the August 2020 VA mental disorders examination report than on the Veteran's reporting that the August 2020 VA examiner told him the exam was positive for PTSD. While the Veteran is certified in addiction medicine, the August 2020 VA examiner is an expert in psychology. More importantly, the Board places significantly greater weight on what the examiner stated in the report than on what the Veteran claims she stated during the exam especially since there is no other evidence of PTSD in the medical records. In the absence of a diagnosis of a mental disorder by the VA examiner or another medical provider, the Board will not evaluate the Veteran's impairment under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) and instead evaluate cognitive impairment and emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" under Diagnostic Code 8045. The October 13, 2020, VA TBI examination report reflects that there was a complaint of mild memory loss, attention, concentration, and executive functioning, but without objective evidence on testing. Judgment was normal, and social interaction was described as being frequently inappropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation were normal. The examiner stated that the Veteran had subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The examiner noted that there were one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both, but do not preclude them. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. In a November 2020 addendum, the October 2020 VA examiner stated that the Veteran's social interaction was frequently inappropriate because the Veteran reported instances of labile mood, verbal aggression, and belligerence. The Board places great weight on the finding in the October 2020 VA examination report that the Veteran's social interaction is not inappropriate most or all of time. The weight of evidence is against a finding that since October 13, 2020, the residuals of TBI, to include insomnia, have been manifested by inappropriate social interactions most or all of the time. The preponderance of evidence is against the claim. Accordingly, an increased rating for residuals of TBI, to include insomnia, since October 13, 2020, is not warranted, and the claim is denied. As for the period prior to October 13, 2020, a May 2016 VA TBI examination report reflects that there was a complaint of mild memory loss, attention, concentration, and executive functioning, but without objective evidence on testing. Judgment was normal, and social interaction was described as being routinely appropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was mildly impaired. The examiner stated that the Veteran had three or more subjective symptoms that do mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. The examiner noted that there were no neurobehavioral effects. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. In a February 2017 statement, the Veteran's spouse noted that the Veteran was frequently irritable and that he had a decreased tolerance for difficulty or stress. The August 2020 VA mental disorders examination report shows that the Veteran reported he does not like personal interactions and that he likes to be alone to avoid fights. Given the evidence of some inappropriate social interaction prior to October 13, 2020, the evidence is in equipoise as to whether from January 15, 2016, to October 12, 2020, the residuals of TBI, to include insomnia, were manifested by frequently inappropriate social interactions. Accordingly, an initial 40 percent disability rating for residuals of TBI, to include insomnia, from January 15, 2016, to October 12, 2020, is warranted. As to whether an initial rating in excess of 40 percent for residuals of TBI is warranted prior to October 12, 2020, the Board places great weight on the October 13, 2020, VA TBI examination report revealing that the Veteran's social interaction was not inappropriate most or all of time. The Board places similar weight on the May 2016 VA TBI examination report reflecting that his social interaction was routinely appropriate. As such, an initial rating in excess of 40 percent prior to October 12, 2020, is not warranted. REASONS FOR REMAND In his March 2021 statement, the Veteran reported that he underwent hearing testing one to two weeks ago and that the testing showed that his hearing had worsened. The RO should obtain those treatment records. Furthermore, given the allegation of worsening and the passage of time since the Veteran was examined in 2016, a new VA examination is warranted. In May 2021, the Veteran's spouse reported that the Veteran is incarcerated. In Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the Court noted that in adjudicating claims of incarcerated veterans, VA must tailor their assistance to the peculiar circumstances of confinement and that such veterans are entitled to the same care and consideration given to their fellow veterans. The issue of entitlement to TDIU is intertwined with the issue of an increased rating for bilateral hearing loss. Harris v. Derwinski, 1 Vet. App. 180 (1991). In November 2020, the RO sent the Veteran a formal TDIU application and asked him to complete the application. He did not respond. Given the TDIU claim is being remanded anyway, the RO should afford the Veteran one final opportunity to complete a formal TDIU application and to provide income information from 2016 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his hearing loss and any disability pertaining to his claim for TDIU and obtain all identified records. 2. The AOJ must provide the Veteran a formal application for his claim of entitlement to TDIU. 3. Ask the Veteran to provide income and employment information from 2016 to 2021. 4. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 5. After development above has been completed, the RO should readjudicate the claims. If any benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.