Citation Nr: 21040920 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-44 198 DATE: July 7, 2021 ORDER A compensable rating for bilateral hearing loss is denied. A rating in excess of 70 percent for PTSD with traumatic brain injury (TBI) injury is denied. A separate 10 percent rating or headaches as a residual of PTSD with TBI is granted. A separate 10 percent disability rating for dizziness as a residual of PTSD with TBI is granted. FINDINGS OF FACT 1. The Veteran's hearing impairment has been no worse than Level VII in the right ear and Level I in the left ear. 2. The Veteran's service-connected PTSD with TBI is not manifested by total occupational and social impairment. 3. Resolving all reasonable doubt in the Veteran's favor, the Veteran's residuals of an in-service head injury include headaches, and his headaches are shown to approximate characteristic prostrating attacks averaging one in 2 months over last several months; however, the preponderance of the evidence shows that the headaches do not result in completely prostrating and prolonged attacks. 4. Resolving all reasonable doubt in the Veteran's favor, the Veteran's residuals of a TBI include frequent dizziness. CONCLUSIONS OF LAW 1. The criteria for compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for a rating in excess of 70 percent for PTSD with TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for a separate disability rating of 10 percent for headaches have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for a separate 10 percent rating for occasional dizziness have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1964 to January 1966, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal and the Combat Infantryman Badge. The Veteran, his wife and his son presented sworn testimony at a hearing before the undersigned in November 2020. The Board remanded the above issues for additional development in December 2020. 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran asserts that his bilateral hearing loss, currently evaluated as noncompensable, warrants a higher evaluation. The Veteran asserts that his hearing disability has worsened since his most recent VA examination in May 2016. See December 2020 Hr'g Tr. The Veteran's bilateral hearing loss is rated as non- compensable under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Under Diagnostic Code 6100 the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 et. seq. Tables VI and VII as set forth following 38 C.F.R. § 4.85 are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). 38 C.F.R. § 4.85 (c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. With the criteria in mind, the Board notes, that at the March 2021 VA examination the Veteran had pure tone thresholds of 55, 75, 90 105+ decibels in the right ear and pure tone thresholds of 30, 45, 55 and 95 decibels in the left ear, at 1000, 2000, 3000, and 4000 Hertz, respectively. The averages were 81 decibels in the right ear and 56 decibels in the left ear. Speech recognition ability was 76 percent in the right ear, and 92 percent in the left ear. Applying the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran's right ear hearing loss, at its worst, is assigned a numeric designation of V and the left ear hearing loss, at its worst, is assigned a numeric designation of I. These test scores do not show that the Veteran met the criteria for a compensable rating for his bilateral hearing loss. As to 38 C.F.R. § 4.86 (a), at the March 2021 VA examination the Veteran had thresholds of 55 decibels or more at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hz) in his right ear. Therefore, this regulation applies to the current claim. With the application of 38 C.F.R. § 4.86 (a), the Veteran's right ear is now assigned a numeric designation of VII under Table VIA and his left ear is still assigned a I under Table VII. These test scores do not show that the Veteran met the criteria for a compensable rating for his bilateral hearing loss. In light of the foregoing, the Board finds that the claim for a compensable rating for his service-connected bilateral hearing loss is denied under Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100. This is true at all times during the pendency of the appeal and therefore consideration of a staged rating is not warranted. Fenderson v. West, 12 Vet. App. 119 (1999). 2. Entitlement to a rating in excess of 70 percent for PTSD with traumatic brain injury (TBI). The Veteran PTSD with traumatic brain injury is rated at 70 percent, effective February 29, 2016. At his November 2020 Board hearing, the Veteran testified that his PTSD with TBI had worsened since his most recent VA examination in February 2016. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted where there is an 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 work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating contemplates 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; and memory loss for names of close relatives, own occupation, or own name. Id. Analysis The Veteran was afforded a VA psychiatric examination in April 2016. Based on the findings of that VA examination report and the other lay and medical evidence of record, including the November 2020, the Board determined that a rating of at least 70 percent was warranted. The February 2021 mental disorders examiner noted that the Veteran has occupational and social impairment with reduced reliability and productivity. The Board notes, the Veteran reported depressed mood; anxiety; 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; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective e work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner reported the Veteran's responses appeared to be thoughtful and considered. The examiner also noted that the symptoms at the examination were attributable to the Veteran's PTSD. The Board finds that the preponderance of the evidence is against a finding that the Veteran's PTSD shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not demonstrate symptoms such as persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. See February 2021 Review of PTSD DBQ. 3. A separate 10 percent disability rating for headaches of TBI. At the November 2020 Board hearing, the Veteran testified that as a consequence of his TBI injury, he has several other disabling manifestations. In this regard, he testified that he experiences headaches and dizziness. See November 2020 Hr'g Tr. Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, 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. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 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 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." Evaluate physical (including neurological) dysfunction 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. 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. Evaluate each condition 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 Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. 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. Assign a 100-percent evaluation 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. 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. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" 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. Note (5): A veteran whose residuals of TBI are rated under a version of §4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Service connection is in effect for the Veteran's PTSD with TBI and the disability has been assigned a 70 percent rating, effective February 29, 2016 under hyphenated Diagnostic Codes 8045-9411. The Veteran seeks a higher disability rating for service-connected PTSD with TBI. Discussion As previously noted, at the November 2020 Board hearing, the Veteran testified that as a consequence of his TBI injury, he experiences dizziness and headaches and potential memory loss. See November 2020 Hr'g Tr. At the Veteran's February 2021 examination reports that the Veteran residuals of TBI include headaches and dizziness/vertigo. The Veteran reported he was unable to drive and that he had progressive memory loss and some neurobehavior issues per his wife. The examiner noted, the Veteran lacked insight into the degree of his deficits. The examiner noted, the Veteran's fatigue is significant and impairing. He gets dizzy often. See February 2021TBI DBQ. The Board notes, that the Veteran is service-connected for PTSD with TBI; hearing loss; tinnitus associated with hearing loss and scar due to shrapnel wound; therefore, his other reported symptoms including headaches, irritability, hearing loss and/or tinnitus are contemplated by the schedular criteria. Applying the criteria under Diagnostic Code 8045, a compensable rating for the Veteran's headaches is not warranted. The Board has considered alternatively rating the Veteran's disability under Diagnostic Code 8100 for migraine headaches as a subjective symptom of the Veteran's residual of PTSD with TBI. Under Diagnostic Code 8100, a noncompensable rating is assigned with less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In this case, the Board finds the Veteran's headaches approximate a severity warranting a separate 10 percent rating. Although at no point has the evidence shown, nor has the Veteran reported that the headaches are characterized by prostrating attacks, due to their frequency in occurrence (at least three to four times per week, and at most daily), the Board finds that a separate 10 percent rating is warranted, but no higher, as there is no evidence of prostrating attacks. 4. A separate 10 percent rating for dizziness. Applying the criteria in Diagnostic Code 8045, a compensable rating for the Veteran's dizziness, which is a manifestation of his service-connected TBI, is not warranted. The Board also considered alternatively rating the Veteran's disability under Diagnostic Code 6204 for peripheral vestibular disorders as a subjective symptom of the Veteran's residuals of PTSD with TBI. The Board finds that Diagnostic Code 6204, regarding peripheral vestibular disorders, is most closely analogous. See 38 C.F.R. § 4.87. Under 6204, disorders causing occasional dizziness warrants a 10 percent rating. A 30 percent rating is warranted for dizziness and occasional staggering. Note: Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. Evaluating the Veteran's symptoms under this diagnostic code, the Board finds that a 10 percent rating is warranted. As previously noted, at the November 2020 Board hearing, the Veteran testified that as a consequence of the residuals of his PTSD and TBI injury, he experiences dizziness. See November 2020 Hr'g Tr. The Veteran's February 2021 examiner reports that the Veteran residuals of TBI include dizziness/vertigo. The Veteran reported he was unable to drive and had progressive memory loss and some neurobehavior issues per his wife. The examiner noted, the Veteran gets dizzy often. See February 2021TBI DBQ The evidence is consistent with central vertigo involving occasional dizziness. Hence, a separate 10 percent rating is assignable. A 30 percent rating is not warranted as there was no occasional staggering due to the vertigo. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.M. Jordan, Associate 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.