Citation Nr: 21039702 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-16 051 DATE: July 1, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a traumatic brain injury (TBI) is denied. Entitlement to service connection for a low back disorder is granted. Entitlement to service connection for a headache disorder is granted. FINDINGS OF FACT 1. The Veteran's traumatic brain injury is shown to include complaints of memory loss and loss of concentration; more than a mild subjective cognitive or emotional/behavioral deficit equating to level 1 traumatic brain injury impairment is not demonstrated. 2. Resolving all reasonable doubt in the Veteran's favor, the evidence of record shows a low back disorder is due to the Veteran's service. 3. Resolving all reasonable doubt in the Veteran's favor, the evidence of record shows a headache disorder is due to the Veteran's service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a , Diagnostic Code 8045. 2. The criteria for service connection for a low back disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for headache disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 2003 to February 2006 and September 2011 and April 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board previously remanded the claims for additional development and consideration. Increased Rating 1. TBI As an initial matter, the Board notes the Veteran was granted a 10 percent rating for residuals of a TBI pursuant to Diagnostic Code 8045, effective from April 16, 2014, in a January 2015 rating decision. The Veteran is seeking a higher initial rating. The Board notes, parenthetically, that he has not submitted any specific arguments regarding the severity of this disability but has generally disagreed with the initial rating assigned. Diagnostic Code 8045 provides for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 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. In a given 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." 38 C.F.R. § 4.124a, Diagnostic Code 8045. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate 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, 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. Evaluate emotional/behavioral dysfunction 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. VA is to evaluate physical (including neurological) dysfunctions under an appropriate diagnostic code for that disability. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" 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 0 to 3, and a fifth level, the highest level of impairment, and labeled "total." The evaluator is to 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The first facet is memory, attention, concentration, and executive functions and is evaluated as follows: 0 for no complaints of impairment; 1 for a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; 2 for objective evidence on testing of mild impairment resulting in mild functional impairment; 3 for objective evidence on testing of moderate impairment resulting in moderate functional impairment; and total for objective evidence on testing of severe impairment resulting in severe functional impairment. Id. The second facet is judgment and is evaluated as follows: 0 for normal judgment; 1 for mildly impaired judgment (for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision); 2 for moderately impaired judgment (for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, but having little difficulty with simple decisions); 3 for moderately severely impaired judgment (for even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision); and total for severely impaired judgment (for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, such as being unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities). Id. The third facet is social interaction and is evaluated as follows: 0 for routinely appropriate social interaction; 1 for occasionally inappropriate social interaction; 2 for frequently inappropriate social interaction; and 3 for social interaction that is inappropriate most or all of the time. Id. The fourth facet is orientation and is evaluated as follows: 0 if always oriented to person, time, place, and situation; 1 if occasionally disoriented to one of those four aspects; 2 if occasionally disoriented to two of those four aspects or often disoriented to one of them; 3 if often disoriented to two or more of them; and total if consistently disoriented to two or more of them. Id. The fifth facet is motor activity (with intact motor and sensory system) and is evaluated as follows: 0 for normal motor activity; 1 for motor activity that is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities despite normal motor function); 2 for motor activity that is mildly decreased or with moderate slowing due to apraxia; 3 for motor activity that is moderately decreased due to apraxia; and total for motor activity that is severely decreased due to apraxia. Id. The sixth facet is visual spatial orientation and is evaluated as follows: 0 for normal visual spatial orientation; 1 if mildly impaired (occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions, but is able to use assistive devices such as GPS); 2 if moderately impaired (usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance, and has difficulty using assistive devices such as GPS); 3 if moderately severely impaired (gets lost even in familiar surroundings and is unable to use assistive devices such as GPS); and total if severely impaired (may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment). Id. The seventh facet is subjective symptoms and is evaluated as follows: 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as mild or occasionally headaches or mild anxiety); 1 for three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light); and 2 for three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships (such as marked fatigability, blurred or double vision, or headaches requiring rest periods during most days). Id. The eighth facet is neurobehavioral effects and is evaluated as follows: 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction (such as irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability); 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction or social interaction but do not preclude them; 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both, but do not preclude them; and 3 for one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Id. The ninth facet is communication and is evaluated as follows: 0 for ability to communicate by spoken and written language and to comprehend spoken and written language; 1 for occasional impairment of comprehension or expression of spoken or written language, but with the ability to communicate complex ideas; 2 for inability to communicate by or comprehend spoken and/or written language more than occasionally but less than half of the time, but generally with the ability to communicate complex ideas; 3 for inability to communicate by or comprehend spoken and/or written language at least half of the time but not all of the time, but with the ability to communicate basic needs and maybe with reliance on gestures or other alternative modes of communication; and total for complete inability to communicate by or comprehend spoken and/or written language, with the inability to communicate basic needs. Id. The tenth facet is consciousness and warrants a total rating if there is a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. As stated above, there is no lesser rating for impairment of consciousness. Id. Diagnostic Code 8045 contains the following 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. 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" 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. Id. The Veteran was afforded a VA examination in December 2014 in connection with his claim for service connection. The examiner noted that the Veteran complained of transient blurred vision following the 2004 in-service injury, and now requires the use of eyeglasses. He also reported increased irritability and frustration, intermittent periods of feeling sorry for himself, and difficulty falling asleep. Upon examination, mild memory loss was noted. Judgment was normal. His social interaction was routinely appropriate; and the examiner stated that the Veteran was always oriented to person, time, place, and situation. The Veteran additionally had normal motor activity, visual spatial orientation, and state of consciousness. The Veteran was also to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. The examiner found that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI. The examiner noted the Veteran exhibited a lack of motivation as one or more neurobehavior effects that do not interfere with workplace or social interactions. Based on these findings, the VA examiner did attribute the TBI to the Veteran's military service. See December 2014 VA TBI Examination. In the prior June 2019 Board remand, the Board requested the RO schedule the Veteran for a new examination to assess the severity of his service-connected TBI. The Veteran was scheduled for an examination, but a January 2020 correspondence noted the Veteran failed to report. To date, there has been no communication from the Veteran regarding his failure to report for the examination. The other evidence of record regarding this claim are VA treatment records showing the Veteran's fairly consistent treatment for his various disabilities. An April 2008 VA TBI Consult, conducted between his two periods of active duty note the 2004 injuries in which he was in blasts involving an improvised explosive device (IED) and a rocket propelled grenade (RPG). He reported experiencing severe vision problems (blurring), hearing issues, and frustrating tolerance. He reported moderate sensitivity to light, feeling anxious, and irritability. Finally, the Veteran reported mild sensitive to noise, concentration, fatigue, depression, and difficulty falling or staying asleep. A subsequent June 2016 VA treatment record notes the Veteran's continuing reports of difficulty concentration, but he also indicated it had improved. The remaining VA treatment records do not contain any other objective findings. Based on the evidence above, the Board finds a rating in excess of 10 percent is not warranted at any point during the appeals period. Specifically, for the reasons noted below, the Board finds that none of the facets warrant an assignment higher than a 1. First, with respect to physical complaints, the Veteran has not argued that he suffers from any physical residuals associated with his TBI. Therefore, any further discussion of his physical complaints need not be addressed. With respect to the Veteran's emotional/behavioral dysfunction, the record reflects that the Veteran has reported a number of emotional/behavioral symptoms. In this case, the Veteran has been diagnosed with posttraumatic stress disorder (PTSD) related to his service, and noted symptoms of anxiety, difficulty sleeping, and impairment impulse control were considered in rating his PTSD. The Veteran has been assigned a separate, 50 percent disability rating for his PTSD under 38 C.F.R. § 4.130. Therefore, his psychological complaints need not been discussed here. Given that cognitive impairment is also to be rated under this table, the Board will proceed with an evaluation of the Veteran's cognitive symptoms under these criteria. Based on findings in the Veteran's December 2014 VA TBI examination, a level of 1 is assigned for the first facet due to mild memory loss. Next, given that judgment, orientation, and motor activity was noted to be normal, and social interaction was routinely appropriate, a rating is assigned for each of these facets. A level of 0 is assigned for the facet neurobehavioral effects because, while it was noted the Veteran suffers from lack of motivation, the examiner stated there was no interference with workplace or social interaction. Likewise, a level of 0 is assigned for communication and consciousness as these facets were found to be normal. As for any subjective symptoms, a level 0 is assigned because the Veteran denied suffering from any symptoms. The Bord notes that the question of whether the Veteran has impairments or symptoms as a result of his TBI is a complex medical question that is beyond the immediately observable cause-and-effect relationship within the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (noting that a lay witness is capable of diagnosing a dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (stating that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Nevertheless, to the extent that the Veteran is competent to opine on this matter, the Board finds that the medical opinions discussed above are of greater probative weight than the more general lay assertions in this regard, as the medical professional have training, knowledge, and expertise on which they relied to reach the above determinations. Finally, as noted above, the Veteran's claim regarding this disability is an original claim. Thus, failure to report for a VA examination scheduled in conjunction with his claim warrants specific action on the part of the rater. That is, 38 C.F.R. § 3.655 unambiguously reads that such a claim shall be rated on the evidence of record when the Veteran fails to report for an examination scheduled in conjunction with his claim. The Veteran has not provided any reason for his failure to report to the examination as scheduled in January 2020. Thus, the totality of the evidence leads the Board to find that the Veteran has not shown good cause for his failure to report to the scheduled VA examination. However, the Veteran did appear to the VA examination in December 2014 and was examined at that time during the course of this appeal, and the Board did consider the results of that examination in compliance with 38 C.F.R. § 3.655. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b). Service Connection In order to establish entitlement to service connection for a 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 2. Low back disorder The Veteran is seeking service connection for a low back disorder that he believes is due to his military service. However, the Veteran has not submitted any specific contentions as to why he believes he is entitled to service connection, to include any statements concerning an in-service back injury. The Board concludes that the Veteran has a back disorder that is attributable to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As an initial matter, the December 2014 VA examiner diagnosed the Veteran with a lumbar strain. Thus, the question becomes whether the current disability is related to service. On this question there is probative evidence in favor of and against the claim. The evidence against the claim includes the fact the Veteran's service treatment records are completely silent regarding any complaints, treatment, or a diagnosis of a back disorder during service. Following service, the Veteran's VA treatment records note the existence of chronic back pain since 2003, during his first period of active duty. See March 2011 VA Gulf War Outpatient Note. A December 2014 VA examiner provided the opinion that the Veteran's lumbar strain is less likely than not incurred in or caused by his service. As rationale, the examiner stated that the lumbar strain was not noted, diagnosed, or treated during service. The Board finds that this opinion is of low probative value as the examiner relied only on the lack of in-service treatment and did not consider the evidence of record clearly showing complaints of recurrent back pain since 2003. The evidence in favor of the claim includes the temporal evidence that his back pain began during his first period of active duty in 2003 and has continued to the present. The Veteran is competent to report the onset and persistent nature of his back pain, diagnosed as a lumbar strain, and did so in his VA treatment records. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Furthermore, there is nothing in the claims file to indicate that his statements of experiencing chronic back pain since his first period of active duty to the present are not credible. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the current low back disorder is related to active service, and there is no reason to accord more weight to negative evidence of record. As noted above, the Veteran's claim regarding this disability is an original claim. Thus, failure to report for a VA examination scheduled in conjunction with his claim warrants specific action on the part of the rater. That is, 38 C.F.R. § 3.655 unambiguously reads that such a claim shall be rated on the evidence of record when the Veteran fails to report for an examination scheduled in conjunction with his claim. The Veteran has not provided any reason for his failure to report to the examination as scheduled in January 2020. Thus, the totality of the evidence leads the Board to find that the Veteran has not shown good cause for his failure to report to the scheduled VA examination. Nevertheless, the Board finds sufficient evidence both in favor and against the claim. As a decision must be made on the evidence of record, the Board finds in favor of the Veteran. The appeal is granted. 3. Headache disorder The Veteran is seeking entitlement to service connection for a headache disorder that he believes is due to service. The Board concludes that the Veteran has a headache disability that is attributable to his service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As an initial matter, the December 2014 VA examiner diagnosed the Veteran with tension headaches. Thus, the question becomes whether the current disability is related to service. On this question there is probative evidence in favor of and against the claim. The evidence against the claim includes the fact the Veteran's service treatment records are completely silent regarding any complaints, treatment, or a diagnosis of headaches during service. While the Veteran's VA treatment records note the existence of headaches, there are no indications of treatment for headaches prior to 2011, with the Veteran denying headaches during an April 2008 TBI consult. A December 2014 VA examiner provided the opinion that the Veteran's headaches are less likely than not incurred in or caused by his service. As rationale, the examiner stated that headaches were not noted, diagnosed, or treated during service. The Board finds that this opinion is of low probative value as the examiner relied only on the lack of in-service treatment and did not consider the Veteran's lay statements or his in-service TBI resulting from five separate blasts due to IED and RPG explosions, with each one resulting in the Veteran hitting his head. See December 2014 VA TBI Examination. The evidence in favor of the claim includes the temporal evidence that his headaches began the same month that the Veteran returned from his second deployment in April 2012, and have continued to the present. The Veteran is competent to report the onset and persistent nature of his headaches and did so in his VA treatment records. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Furthermore, there is nothing in the claims file to indicate that his statements of experiencing headaches following service are not credible. Moreover, the fact that the Veteran's last period of active duty concluded in April 2012, corresponds with a notation in his VA treatment records, also dated in April 2012, noting the existence of headaches, supports the award of service connection for this disability. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the current headache disorder is related to active service, and there is no reason to accord more weight to negative evidence of record. As noted above, the Veteran's claim regarding this disability is an original claim. Thus, failure to report for a VA examination scheduled in conjunction with his claim warrants specific action on the part of the rater. That is, 38 C.F.R. § 3.655 unambiguously reads that such a claim shall be rated on the evidence of record when the Veteran fails to report for an examination scheduled in conjunction with his claim. The Veteran has not provided any reason for his failure to report to the examination as scheduled in January 2020. Thus, the totality of the evidence leads the Board to find that the Veteran has not shown good cause for his failure to report to the scheduled VA examination. Nevertheless, the Board finds sufficient evidence both in favor and against the claim. As a decision must be made on the evidence of record, the Board finds in favor of the Veteran. The appeal is granted. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.