Citation Nr: 21032380 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-20 297 DATE: May 26, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to separate compensable ratings for traumatic brain injury (TBI) residuals is denied. REMANDED In addition, entitlement to a separate compensable rating for peripheral vestibular disorder (PVD), as related to the service-connected TBI, is remanded to the agency of original jurisdiction (AOJ) for additional development. FINDING OF FACT 1. Throughout the appeal, the Veteran's PTSD has been productive of occupational and social impairment with deficiencies in most areas; total occupational and social impairment have not been shown. 2. Throughout the appeal period, the Veteran's TBI residuals manifested in no more than a Level 3 impairment in the facets of cognitive impairment. CONCLUSION OF LAW 1. The criteria for rating in excess of 70 percent rating for PTSD 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 9411. 2. The criteria for a separate compensable rating for residuals of a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2001 to August 2013. The Veteran's appeal stems from the October 2013 rating decision, which, in pertinent part, granted service connection for PTSD and history of concussion and memory loss. The Veteran seeks an increased rating for PTSD and separate ratings TBI residuals. In July 2018, the Board remanded the case for further development. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's symptoms have been consistent such that staged ratings do not apply. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Mental Disorder Law The Veteran's PTSD disability is currently rated as 70 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This diagnostic code provides that PTSD is to be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 a work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; 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; and memory loss for names of closes relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). TBI Law Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive; emotional and/or behavioral; and, physical. 38 C.F.R. § 4.124a, Diagnostic Code 8045. This code is complex and is explained in full below. In summary, however, the cognitive area of dysfunction has several subparts, or facets, for consideration, and each of those facets is assigned a numerical value depending on the symptoms experienced. The ultimate disability rating is based on whichever one facet has the highest number assigned. The emotional/behavioral and physical areas of dysfunction are rated separately under the appropriate diagnostic code. For the purposes of Diagnostic Code 8045, cognitive impairment is defined as decreased memory, concentration, attention, and executive function of the brain. Id. 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. Id. Not all these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In an individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be rated 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 a TBI or may be associated with cognitive impairment or other areas of dysfunction. Id. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, are to be rated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache, should be rated under that code, 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 the Schedule of Ratings for Mental Disorders when there is a diagnosis of a mental disorder. Id.; see also 38 C.F.R. § 4.130. When there is no diagnosis of a mental disorder, emotional and/or behavioral symptoms are to be evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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 list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. Id. Residuals not listed that are reported on an examination are to be evaluated under the most appropriate diagnostic code. Id. Each condition should be rated separately, if the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition are to be combined using the combined ratings table. Id.; see 38 C.F.R. § 4.25. 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Regarding 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 a traumatic brain injury related to cognitive impairment and subjective symptoms. They are: memory, attention, concentration, and executive function; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. Id. The table 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." Id. 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. Id. A 100-percent evaluation is to be 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. Id. 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. Id. at Note 1. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. Id. However, if the manifestations are clearly separable, a separate evaluation for each condition is assigned. Id. Of note, symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present to assign a particular evaluation. Id. at Note 2. "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. Id. at Note 3. 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. 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. Id. at Note 4. This classification does not affect the rating assigned under Diagnostic Code 8045. Id. PTSD evidence and analysis The Veteran seeks a rating in excess of 70 percent for his psychiatric disorder, which has been rated 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, this case turns on whether his psychiatric disorder has been productive of total occupational and social impairment. At the onset, the Board aknowlesges that the Veteran's PTSD has been productive of significant impairment in most areas due to symptoms such as depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short-and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; and impaired impulse control, such as unprovoked irritability with periods of violence. Critically, however, the evidence does not show that these signs and symptoms were of such duration, severity, and frequency so as to result in total social and occupational impairment. In this regard, the evidence indicates that the Veteran is currently employed. Specifically, during the June 2020 psychiatric examination, the Veteran reported that he has worked for the Post Office for the past twelve years. Given this affirmative evidence of employment, the Board cannot find that the Veteran's PTSD results in total occupational impairment. As to social impairment, while the evidence shows that the Veteran is divorced, the June 2020 psychiatric examination report indicates that the Veteran's oldest child lives with him and that he was driving to visit another child when he was arrested two years prior to the examination. The Board finds that evidence of such close relationships affirmatively opposes the notion of total social impairment. The examination report further indicates that the Veteran reported that his physical impairments have him working "up front in the post office." The fact that the Veteran has been able to maintain employment, presumably working with others in some capacity, further opposes the notion of total social impairment. Thus, while the Board acknowledges the serious nature of the Veteran's PTSD symptoms, it cannot find that such result in total social and occupational impairment in the presence of his present employment and relationships with family. Accordingly, a 100 percent rating for PTSD is not warranted. TBI evidence and analysis The Veteran has had two examinations in relation to his TBI residuals. The Veteran went through a series of VA examinations in January 2013, to include an examination on his TBI residuals. The Veteran reported headaches, dizziness, numbness in his fingers and toes, sleep problems, psychiatric symptoms (to include memory, cognitive, and neurobehavioral problems), hearing loss, tinnitus, hypersensitivity to light and sound, and a decreased sense of smell. While the TBI examination reviewed the symptomology related to the Veteran's TBI and related symptoms, it did not assign a rating to any of the 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms for the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, the October 2013 rating decision did. The rating decision assigned the following ratings: "2" for the Memory, attention, concentration, and executive functions facet; "0" for the Judgment facet; "1" for the social interaction facet; "0" for the orientation facet; "0" for the motor activity (with intact motor and sensory system) facet; "1" for the visual spatial orientation facet; "1" for the subjective symptoms facet; "2" for the neurobehavioral effects facet; and "0" for the communication facet. The evaluation assigned for cognitive impairment and other residuals of TBI not otherwise classified" is based upon the highest level of severity for any facet and only one evaluation would be assigned for all the applicable facets. Given the above, the evaluation assigned would be 40 percent based upon the highest severity level of "2," which was assigned for the following facets: "memory, attention, concentration, and executive functions" and "neurobehavioral effects." The Board finds that these ratings are supported by the evidence of record, to include the January 2013 VA examinations. Rather than assign a 40 percent rating for these facet deficits, the rating decision assigned a 70 percent rating for the Veteran's PTSD. The examiner did not delineate the symptoms of the PTSD compared to the TBI. Given this, a single evaluation was assigned under whichever set of diagnostic criteria allowed the better assessment of overall impaired functioning due to both conditions. Here, the Veteran's PTSD not only allowed for a better assessment of overall impaired functioning due to both conditions, it also permitted a rating of 70 percent compared to a 40 percent rating for the TBI residuals alone. A separate rating of 30 percent was assigned for the Veteran's headaches. Therefore, the AOJ rated the Veteran's PTSD and TBI together because it could not separate the symptoms of the Veteran's PTSD and TBI residuals and because it provided the Veteran the greater benefit. Another VA examination was conducted in June 2020. The examiner stated that "clear differentiation of the [Veteran's PTSD and TBI] symptoms is not possible at this time to any degree of medical certainty without resorting to speculation." The same examiner performed both the TBI and PTSD examinations. Upon TBI examination, the examiner assessed the following ratings: "1" for the Memory, attention, concentration, and executive functions facet; "0" for the Judgment facet; "3" for the social interaction facet; "0" for the orientation facet; "0" for the motor activity (with intact motor and sensory system) facet; "0" for the visual spatial orientation facet; "3" for the subjective symptoms facet; "0" for the neurobehavioral effects facet; and "0" for the communication facet. The evaluation assigned for "cognitive impairment and other residuals of TBI not otherwise classified" is based upon the highest level of severity for any facet and only one evaluation would assigned for all the applicable facets. Given the above, the evaluation assigned would be 70 percent based upon the highest severity level of "3," which was assigned for the following facet: "social interaction." The examiner stated that the "3" for the subjective symptoms facet was related to the Veteran's headaches (which are not on appeal). Upon additional examination, in August 2020, an examiner assessed PVD as related to the Veteran's TBI; this is discussed in the Remand section below. In light of the foregoing, the preponderance of the evidence is against a finding that the Veteran is entitled to a separate disability rating for his TBI. The Veteran was assigned a separate rating for his headaches. Further, his other TBI symptoms and PTSD symptoms could not be separated; thus, they are rated together and the greatest benefit is then provided to the Veteran. Here, based on the January 2013 examination, the Veteran would be permitted a 70 percent rating for his PTSD compared to a 40 percent rating for his TBI. Thus, a 70 percent rating was assigned. In June 2020, the Veteran would be in receipt of a 70 percent rating for his TBI and/or PTSD. Thus, no separate rating for his TBI residuals is warranted. The Board has considered the Veteran's lay assertions and argument that he is entitled to a higher rating or separate for TBI. However, given the VA examiner's education and medical training, the Board finds the examinations more probative. The level of impairment is a complex medical question that involves an assessment of symptoms in each of the related facets and application of professional judgment outside of the realm of knowledge of a layperson using his senses. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). For these reasons, the Board finds that a separate disability rating for the Veteran's TBI residuals, apart from his PTSD, is not appropriate. Thus, the claim is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a separate compensable rating for PVD, as related to a TBI, is remanded. At the Veteran's TBI examination in June 2020, the Veteran reported symptoms of ongoing tinnitus and dizziness/vertigo as related to his service-connected TBI. In August 2020, a diagnosis of peripheral vestibular syndrome (PVD) was assessed. The examiner noted the following vestibular symptoms: hearing impairment, tinnitus, vertigo, and staggering. At the Veteran's January 2013 TBI examination, the Veteran reported dizziness, without vertigo. While the Veteran is service-connected for both tinnitus and hearing loss, the AOJ did not relate either condition as being a symptom of the Veteran's TBI. Under Diagnostic Code 6204, for "PVD", ratings are available from 10 to 30 percent depending on the symptoms expressed. Under Diagnostic Code 6205, for "Meniere's syndrome (endolymphatic hydrops)" ratings are available from 30 to 100 percent depending on the symptoms expressed, to include hearing loss, vertigo, and tinnitus. However, the note to Diagnostic Code 6205 allows for rating either under Diagnostic Codes 6204 or 6205, but the ratings for bilateral hearing loss and tinnitus should not be combined with a rating under Diagnostic Code 6205. In this regard, the Veteran in in receipt of an initial 10 percent rating for tinnitus and an initial noncompensable rating for bilateral hearing loss. It is unclear to the Board whether the Veteran's hearing loss (with or without vertigo and/or cerebellar gait) is etiologically related to the Veteran's TBI or is related to his PVD, such that a rating (to include by analogy) under Diagnostic Code 6205 is appropriate. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to address the Veteran's peripheral vestibular disorder (PVD) disability. The clinician should answer the following questions: Is it at least as likely as not that the Veteran's PVD is a residual of his service-connected TBI? If the clinician finds that it is not, the clinician is to address the findings of the June 2020 examiner finding that it is a residual. Is it at least as likely as not that the Veteran's PVD, hearing loss, and tinnitus are related such that they produce symptoms analogous to those associated with Meniere's disease, vertigo, and/or cerebellar gait? (Continued on the next page) An explanation with supporting rationale is required for a complete answer. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.