Citation Nr: 21040604 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 13-07 559 DATE: July 6, 2021 ORDER Entitlement to a rating in excess of 40 percent prior to July 27, 2017 and in excess of 50 percent thereafter for residuals of traumatic brain injury (TBI) is denied. REMANDED Entitlement to a rating in excess of 30 percent for migraines is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At no time during the period on appeal, has the Veteran had any facet of cognitive impairment or other residual of TBI that warrants a level of impairment of 3 or total impairment. 2. At no time during the period on appeal, has the Veteran's psychiatric condition due to TBI caused greater than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent prior to July 27, 2017 and in excess of 50 percent thereafter for residuals of TBI have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.118, 4.124a, Diagnostic Codes 8045, 9310. REASONS AND BASES FOR FINDING AND CONCLUSION In a January 2020 decision, the Board denied the Veteran's claim for an increased rating for migraines and remanded the Veteran's claim for an increased rating for TBI and entitlement to TDIU for additional development. The Veteran appealed the denial of an increased rating for migraines to the Court of Appeals for Veterans Claims (Court). In December 2020, the Court vacated the Board's denial and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). The two remanded claims of entitlement to an increased rating for TBI and entitlement to TDIU have also since been returned to the Board for further appellate action. 1. Entitlement to a rating in excess of 40 percent prior to July 27, 2017 and in excess of 50 percent thereafter for residuals of TBI Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Prior to July 27, 2017, the Veteran has a 40 percent rating under Diagnostic Code 8045 for traumatic brain injury. As of July 27, 2017, the disability, reclassified as neurocognitive disorder, residual of TBI, is rated at 50 percent under Diagnostic Code 8045-9310. Diagnostic Code 8045 provides for the evaluation of TBI residuals. See 38 C.F.R. § 4.124a. There are three main areas of dysfunction listed that may result from traumatic brain injuries and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" is used to evaluate cognitive impairment and subjective symptoms. It contains 10 facets of TBI related to cognitive impairment and subjective symptoms. Each facet is to be assigned a number ranging from 0 to 3 and a level 5, which is total impairment. The rater is to assign the overall percentage evaluation based on the level of the highest facet. Only one percentage evaluation is assigned for all the applicable facets. The 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. The Veteran already has a 40 percent rating. Thus, the applicable question is whether a level of a 3 or 5 is applicable for any facet. As 2 is the highest level of the subjective symptoms facet it cannot form the basis for a higher rating for the Veteran. The following are the remaining nine facets: cognitive impairment, judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavior effects, communication, and consciousness. Id. 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. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Id. VA is to evaluate physical (including neurological) dysfunction under an appropriate diagnostic code. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code. 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. Id. The Board finds that a preponderance of the evidence is against finding any facet has warranted a level 3 or above such that a rating in excess of 40 percent is warranted under Diagnostic Code 8045. The Veteran first underwent a VA examination in August 2009. He reported problems with short term memory and was noted to be alert and oriented with normal speech, language, attention, and concentration. He was afforded a TBI VA examination in November 2009 were he again reported memory impairment, decreased attention, difficulty concentrating, difficulty with executive functions, mood swings, anxiety, irritability, and restlessness. The examiner indicated there was a complaint of mild memory loss without objective evidence on testing, equating to an impairment level of 1. The examiner indicated that the Veteran had normal judgment, his social interaction was routinely appropriate, he was always oriented, his motor activity was normal, his visual spatial orientation was normal, and he was able to communicate and comprehend spoken and written language, all of which equate to an impairment level of 0. Finally, the examiner indicated that the Veteran has one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both, but do not preclude them, which is the criteria for an impairment level of 2. The Veteran again underwent a VA examination in September 2010. At that examination, the examiner indicated that the Veteran has one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, which equates to an impairment level of 0. The examiner also indicated that the Veteran is always oriented to person, time, place, and situation; is able to communicate and comprehend spoken and written language; and has normal motor activity and visual spatial orientation, all of which equate to an impairment level of 0. The examiner did indicate the Veteran has complaints but no objective evidence on testing of memory loss, attention, concentration, or executive function; mildly impaired judgment; and occasionally inappropriate social interaction, all of which equate to an impairment level of 1. In May 2011 the Veteran underwent a VA mental health examination at which he was noted to be oriented with no cognitive impairments seen and a 30 out of 30 score on the mini mental status exam. In May 2012 he underwent neuropsychological testing. The results were noted to be consistent with normal cognitive functioning, although the Veteran did present with decreased planning, some impulsivity and relative slowness on some tasks. His visual memory was also weak. The Veteran underwent another VA examination in January 2013. The examiner cited the May 2012 testing results and indicated the Veteran to have a complaint of mild memory loss but without objective evidence on testing, equating to an impairment level of 1. The examiner indicated that the judgment, social interaction, orientation, motor activity, visual spatial orientation, neurobehavioral effects, and communication would all warrant an impairment level of 0. In September 2014 the Veteran was afforded another VA examination at which the findings were the same as the January 2013 VA examination. At his June 2016 Board hearing, the Veteran testified he has problems with his short-term memory, describing forgetting reading details as he reads a newspaper article. Finally, in January 2019 the Veteran again underwent a VA TBI examination. The examiner indicated that the Veteran's judgment, orientation, visual spatial orientation, and communication all warrant an impairment level of 0. The examiner indicated that there is objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, which equates to an impairment level of 2. The examiner also indicated that the Veteran's social interaction is occasionally inappropriate, which equates to an impairment level of 1. The Veteran's motor activity was noted to be mildly decreased or with moderate slowing due to apraxia, which equates to an impairment level of 2. The Veteran was also noted to have one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them, which equates to an impairment level of 2. Thus, multiple VA examinations throughout the period on appeal support that the highest impairment level for any facet was a 2, which warrants a 40 percent rating under Diagnostic Code 8045. The Board has considered the VA examinations as well as the Veteran's lay statements and medical treatment records but finds that a preponderance of the evidence is against finding that the level of impairment for any facet more closely approximates the criteria for an impairment level of 3. Further, the evidence does not reflect, and the Veteran has not contended, that he has been in a persistently altered state of consciousness such that a total disability rating would be warranted. The Board notes that as of July 27, 2017, the Veteran has a 50 percent rating under Diagnostic Code 8045-9310. Diagnostic Code 9310 applies to an unspecified neurocognitive disorder. In assigning the rating, the AOJ cited a January 2019 VA mental health examination in which the examiner opined that the Veteran's mental disorder is solely due to his TBI. The AOJ identified the effective date as the date on which the Veteran filed a claim for service connection for a mental health condition. Note (1) under the table Evaluation of Cognitive Impairment and Subjective Symptoms states: 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. Ratings under Diagnostic Code 9310 are assigned based on the General Rating Formula for Mental Disorders, which provides a 50 percent rating where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.118. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, 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 the 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. On VA mental health examination in January 2019, the examiner opined that the Veteran's mental disorder results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, which is the criteria for a 30 percent rating under the General Rating Formula for Mental Disorders. The examiner indicated that the Veteran's symptoms include depressed mood, suspiciousness, sleep impairment, mild memory, loss, circumlocutory stereotyped speech, and difficulty in establishing and maintaining effective work and social relationships. No psychomotor abnormalities were observed. The Veteran displayed adequate eye contact and grooming and was generally cooperative with the evaluation. Speech was spontaneous and fluent. Affect was mildly anxious and irritable, congruent with his stated mood, and appropriate to topic. Thought process was linear and organized. He frequently veered off topic but responded to firm re-direction. Associations were coherent. Thought content was without delusions. Attention was intact via conversation and insight and judgment appeared intact. The Veteran denied experiencing auditory or visual hallucinations and suicidal or homicidal ideation. He reported easy irritability and displayed some impulsivity. The Board finds that the January 2019 VA examination does not support that the criteria for a 70 percent or greater rating under the General Rating Formula for Mental Disorders are more closely approximated. A review of the Veteran's lay statements and medical treatment records further do not support that the Veteran's TBI residuals, including his diagnosed mild neurocognitive disorder, more closely approximate occupational and social impairment with deficiencies in most areas. A September 2015 VA treatment record notes the Veteran reported having a short temper but did not endorse issues with physical aggression. He denied thoughts to harm himself or others. He was neatly dressed and groomed, alert and fully oriented. His mood was euthymic with congruent, broad range of affect. The examiner described him as pleasant and talkative. Speech was normal for rate and fluency. He was a reliable historian with good insight and judgment. Thought processes were linear and goal-directed, without evidence of reality disturbance or cognitive impairment. He reported his friends has encouraged him to seek treatment. At his June 2016 Board hearing the Veteran testified that he has problems with short-term memory, has mood swings, and has a short fuse. A January 2019 VA treatment record notes the Veteran to be alert and oriented with appropriate grooming and hygiene. His thought processes were logical, linear, and goal-directed. The examiner described his behavior as cooperative and reasonable. The examiner noted he was verbose and appeared to have somewhat pressured speech, although not mania-like. Attention and concentration appeared grossly intact. The Veteran endorsed limited to no support or close relationships. At a March 2019 VA appointment he reported having a short fuse and recounted being in a fight recently, although he reported the fight was the fault of the other person. The examiner indicated his was alert and oriented; his thought process was logical, linear, and goal-directed; his speech normal; his grooming and hygiene appropriate; and his behavior cooperative and reasonable. His mood was moderately depressed. The Board finds the level of impairment caused by the Veteran's symptoms most closely approximates the level associated with a 50 percent rating. While the Veteran did endorse some symptoms contemplated by a 70 percent rating, such as impaired impulse control and difficulty adapting to stressful circumstances, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. The Veteran's other symptoms, including impairment of short-term memory, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships, are either contemplated by or more consistent with a 50 percent rating. The Board has further considered whether the effective date of the 50 percent rating should be earlier than July 27, 2017 but finds that it should not. A May 2011 VA examination made no psychiatric diagnosis. A September 2015 VA treatment record notes the Veteran to have no history of psychiatric diagnosis or treatment. The earliest psychiatric diagnosis of record is the January 2019 VA examination. The Board further finds that a preponderance of the evidence is against finding that even if the Veteran had been diagnosed prior to July 27, 2017, that he met the criteria for a rating in excess of 50 percent at that time. Finally, the Board acknowledges that the Veteran has contended that he has eye problems secondary to his TBI. In January 2020 the Veteran was afforded a VA eye examination and a medical opinion obtained. The VA examiner opined that it is less likely than not that the Veteran's TBI has caused any vision or eye problems, opining that the Veteran's cataracts are age-related. The Board acknowledges the Veteran's own opinion that his eye problems are causally related to his TBI, but finds that as a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the etiology of his eye problems. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board finds the opinion of the VA examiner is the most probative as to the etiology of the Veteran's eye problems and do not support that he has any eye problems that are manifestations of his TBI. Therefore, considering eye disability in establishing the proper rating for TBI residuals is not warranted. Based on the forgoing, the Board finds that a rating in excess of 40 percent prior to July 27, 2017 and a rating in excess of 50 percent thereafter is not warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for migraines is remanded. The Veteran underwent a VA headache examination in January 2019. The examination report states that the Veteran reported headaches twice weekly that take him out. However, the examiner checked the box indicating that the Veteran has characteristic prostrating attacks of headache pain only once per month. The inconsistency is not explained. Further, the examination report does not describe or explain how the Veteran is incapacitated by headaches. A remand is required to obtain an addendum opinion that clarifies the above inconsistencies and omissions. 2. Entitlement to a total disability rating based on individual unemployability is remanded. The record reflects that in January 2020 the VA mailed the Veteran a letter to the Illinois address on file for him, requesting that he provide an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). A note in the Veteran's VA medical records from October 2019 indicate that the Veteran reported he was homeless and in Arkansas at the time. In March 2020 he provided the VA with a new mailing address in Texas. Given the circumstances, the Board finds that the Veteran should be provided an additional opportunity to submit an updated VA Form 21-8940 that clarifies his employment history for the entire period on appeal. The matters are REMANDED for the following action: 1. Request that the Veteran provide an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) that clarifies his employment history for the entire period on appeal. 2. Obtain an addendum opinion from the VA examiner who conducted the January 2019 VA headache examination that describes how the Veteran is incapacitated by headaches and clarifies the apparent discrepancy between the Veteran's report of headaches twice weekly that take him out and the check box indicating that the Veteran has characteristic prostrating attacks of headache pain only once per month. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.