Citation Nr: 21041751 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 11-23 140 DATE: July 10, 2021 ORDER Entitlement to an effective date prior to October 15, 2019, for the grant of a total disability rating for compensation purposes due to individual unemployability (TDIU) is dismissed. Entitlement to higher staged ratings for major neurocognitive disorder due to traumatic brain injury (TBI) from May 27, 2009, to August 16, 2012, is denied. Entitlement to a 50 percent rating, and no higher, for major neurocognitive disorder due to TBI for the period from August 17, 2012, to October 14, 2019, is granted. Entitlement to higher staged ratings for major neurocognitive disorder due to TBI from October 15, 2019, is denied. Entitlement to a rating in excess of 10 percent for a seizure disorder is denied. FINDINGS OF FACT 1. The Veteran submitted a VA Form 20-0996, Request for Higher Level Review, in September 2020. He requested to appeal the effective date assigned for the grant of TDIU in an August 2020 rating decision. Given the Veteran's election to participate in the Appeals Modernization Act (AMA) system, the Board no longer has jurisdiction over the claim in the legacy system, and it must be dismissed. 2. The most probative evidence does not reach the level of equipoise as to whether the Veteran's major neurocognitive disorder due to TBI resulted in functional impairment to the extent that higher staged ratings may be assigned from May 27, 2009, to August 16, 2012. 3. The most probative evidence is at least in relative equipoise as to whether the Veteran's TBI with major neurocognitive disorder manifested functional impairment to the extent that a 50 percent rating, and no higher, may be assigned from August 17, 2012, to October 14, 2019. 4. The most probative evidence does not reach the level of equipoise as to whether the Veteran's major neurocognitive disorder due to TBI resulted in functional impairment to the extent that higher staged ratings may be assigned from October 15, 2019. 5. The most probative evidence does not reach the level of equipoise as to whether the Veteran's seizure disorder resulted in functional impairment to the extent that higher staged ratings may be assigned during the appeal period. CONCLUSIONS OF LAW 1. The claim of entitlement to an effective date prior to October 15, 2019, for the grant of a TDIU is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to higher staged ratings for major neurocognitive disorder due to TBI from May 27, 2009, to August 16, 2012, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, DC 8045-9304. 3. The criteria for entitlement to a 50 percent rating, and no higher, for major neurocognitive disorder due to TBI from August 17, 2012, to October 14, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, DC 8045-9304. 4. The criteria for entitlement to higher staged ratings for major neurocognitive disorder due to TBI from October 15, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, DC 8045-9304. 5. The criteria for entitlement to a rating in excess of 10 percent for a seizure disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, DC 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1979 to August 1983, and from November 1983 to February 2005. He received the Marine Corps Good Conduct Medal with Two Stars, and the Navy Meritorious Unit Commendation with three stars, among other decorations. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). A brief review of the procedural history of these matters is necessary. In August 2017, the Board remanded claims for a rating in excess of 30 percent for a cognitive disorder as a residual of head trauma, a rating in excess of 10 percent for a seizure disorder, and a TDIU for further development. The agency of original jurisdiction (AOJ) was asked, among other things, to obtain updated examinations reflecting the current severity of the disorders on appeal and to develop the claim of TDIU. The record reflects that the Veteran submitted an opt-in to the Rapid Appeals Modernization Program (RAMP) in May 2018. It appears as though the AOJ did not appropriately process the RAMP election, and the matters remained in the legacy system. After performing additional development, the AOJ issued an August 2020 rating decision granting a 70 percent rating for the Veteran's major neurocognitive disorder due to TBI from October 15, 2019, and a 100 percent rating for the disorder from August 21, 2020. The AOJ also granted basic eligibility to dependent's educational assistance, special monthly compensation based on housebound criteria under 38 U.S.C. § 1114(s); and entitlement to a TDIU from October 15, 2019. The Veteran was informed that these actions were considered partial grants of his appeal. On September 29, 2020, the AOJ received a VA Form 20-0996 in which the Veteran requested a higher level review of the August 2020 rating decision as to the issue of an earlier effective date for TDIU. The AOJ did not respond to the Veteran's selection of a higher level review. Thereafter, the AOJ issued a Supplemental Statement of the Case and returned the matters to the Board. The Board finds that the Veteran's selection of a higher-level review of the August 2020 rating decision as to the claim for an earlier effective date of TDIU is valid. 38 U.S.C. § 7105. He clearly and unambiguously requested that the claim be evaluated under the AMA system and submitted the appropriate form documenting his intent. The Board may not preclude the Veteran from exercising his choice of review, and a veteran may not pursue appeals of the same issues simultaneously in both the legacy and AMA system. Thus, the Board does not have jurisdiction to decide the claim in the legacy system and the matter must be dismissed. To the extent that the AOJ has not yet responded to the request for higher-level review, the Board lacks a mechanism for referring issues under the AMA system. However, the Veteran and his representative may notify the AOJ that the request for a higher-level review remains pending due to the receipt of a valid VA Form 20-0996 in September 2020. In April 2021, the Board became aware of the Veteran's missed RAMP election submitted in May 2018. VA personnel sent the Veteran a letter asking him if he still wished to have the issues decided in the AMA system, and, if so, to complete an attached form and send it back to the Board. The record does not reflect that the Veteran responded to the letter. Accordingly, the Board will issue a decision herein on the merits of the two remaining claims in the legacy appeals system: higher staged ratings for major neurocognitive disorder due to TBI prior to August 21, 2020, and entitlement to a rating in excess of 10 percent for a seizure disorder. Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Higher Staged Ratings TBI The Board finds that the most probative evidence is at least in equipoise as to whether a 50 percent rating may be assigned for the Veteran's major neurocognitive disorder with TBI from August 17, 2012, to October 14, 2019. However, no other higher staged ratings are appropriate during the appeal period. Residuals of TBI are normally rated under 38 C.F.R. § 4.124a, DC 8045. There are three main areas of dysfunction listed that may result from TBI: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. Cognitive impairment is to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Emotional and behavioral dysfunction is to be evaluated under § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional or behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Physical (including neurological) dysfunction is to be evaluated under an appropriate diagnostic code. Note (1) to Diagnostic Code 8045 acknowledges that "[t]here may be an overlap of manifestations of conditions evaluated under the table titled 'Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified' with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition." Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a 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 4th level, the highest level of impairment, and labeled "total." A 100 percent evaluation is 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. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and 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. 38 C.F.R. § 4.126(a). Neurocognitive disorders shall be evaluated under the general rating formula for mental disorders; neurologic deficits or other impairments stemming from the same etiology (e.g., a head injury) shall be evaluated separately and combined with the evaluation for neurocognitive disorders. Id. at 4.126(c). Under the General Rating Formula, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for 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. A maximum 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 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. In this case, the Veteran has a TBI and a diagnosed comorbid disorder of major neurocognitive disorder due to TBI. As noted previously, applicable regulations require that neurocognitive disorders be evaluated under the general rating formula and neurological deficits be evaluated separately. 38 C.F.R. § 4.126(a). However, the Board notes that relevant medical evidence has indicated that "all symptoms are due to the TBI, including the symptoms of the neurocognitive disorder, since the mental condition is secondary to the TBI." See C&P Exam, October 2019. Also, a VA examiner has indicated that it is impossible to separate the symptoms of TBI and neurocognitive disorder because all of the psychiatric symptoms are a result of the head injury. See C&P Exam, August 2020. Therefore, to prevent pyramiding of disability ratings, the Board will assign a single evaluation under the criteria at 38 C.F.R. § 4.130, because that criteria will result in a higher rating for the Veteran based on the available record. See 38 C.F.R. §§ 4.2, 4.14. Turning to the evidence of record, the Veteran underwent a VA examination performed by a neurologist and a clinical psychologist in November 2009. He reported fracturing his sinus after colliding against another player during a soccer game in military service. He stated that he was diagnosed with seizures in 2004 and was placed on medication, and reported that he has not had any seizures since that time. The psychologist found no history of psychiatric symptoms and no current psychiatric manifestations, but noted some mild memory impairment and neurobehavioral symptoms including irritability and short temper. The neurologist performed cognitive impairment testing, which revealed mild memory impairment; normal judgment; occasionally inappropriate social interaction; always oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; subjective symptoms not interfering with work, instrumental activities of daily living, or relationships; and one or more neurobehavioral effects that occasionally interfere with workplace or social interaction, but do not preclude them; able to communicate by and comprehend spoken and written language; and normal consciousness. The Veteran attended another VA examination in August 2012. Cognitive impairment testing revealed mild memory loss; normal judgment; routinely appropriate social interaction; always oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; subjective symptoms not interfering with work, instrumental activities of daily living, or relationships; and one or more neurobehavioral effects that occasionally interfere with workplace or social interaction, but do not preclude them; able to communicate by and comprehend spoken and written language; and normal consciousness. As part of the August 2012 VA examination, the Veteran was evaluated for mental disorders on August 17, 2012. The psychiatric examiner diagnosed a mood disorder and dementia due to TBI, and opined that the Veteran's memory problems were related to dementia and his mood symptoms were related to the mood disorder, but further found that it is not possible to differentiate the functional impairment between the disorders and the TBI, because the TBI caused the dementia and mood disorder. Functional impairment was described as occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. The examiner listed symptoms for rating purposes including depressed mood, mild memory loss, impairment of short and long-term memory, and flattened affect. In October 2019, the Veteran underwent a VA mental health examination. He reported having anger and impatience with other people, and that he had been fired from two jobs since leaving the military due to hostility and cognitive inflexibility. The examiner diagnosed major neurocognitive disorder due to TBI, and opined that it is not possible to differentiate which symptoms are due to the TBI as opposed to the other disorder because "all symptoms are due to TBI." The examiner listed occupational and social impairment equivalent to reduced reliability and productivity, and indicated that "all impairments are due to the TBI." The examiner listed symptoms for rating purposes including anxiety; mild memory loss; flattened affect; impaired judgment; impaired abstract thinking; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including in a work or worklike setting. The Veteran underwent a VA examination for his residuals of TBI in July 2020. Cognitive testing revealed mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing; mildly impaired judgment; social interaction occasionally inappropriate; always oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships; one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; able to communicate by and comprehend spoken and written language; and normal consciousness. As part of the July 2020 VA examination, the Veteran was evaluated for mental disorders. The psychiatrist diagnosed major neurocognitive disorder due to TBI, and found that it is not possible to determine what symptoms are attributable to the TBI as opposed to the major neurocognitive disorder. She explained that the Veteran's residual TBI symptoms, including hostility, inflexibility, and lack of awareness of his conditions are all related to residual effects of the initial head injury, hence, the mental disorder is difficult to differentiate from the head trauma. She listed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and mood, and found that it was not possible to differentiate the functional impairment caused by the TBI. Symptoms for rating purposes included suspiciousness; chronic sleep impairment; mild memory loss; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impaired judgment; gross impairment in thought process or communication; inability to establish and maintain effective relationships; and grossly inappropriate behavior. The Board has reviewed the Veteran's VA and private medical records. However, such records do not show evidence of functional impairment to the extent that higher staged ratings may be assigned, other than as discussed herein. After careful review, the Board finds that higher staged ratings may not be granted during the rating period from May 27, 2009, to August 16, 2012. The Veteran was not diagnosed with a mental health disorder due to his TBI during this time span, and the documented severity of his TBI residuals does not show functional impairment to the extent that a higher rating may be assigned during that period. Specifically, the VA psychiatric examiner did not diagnose a mental disorder and found no physical manifestation of psychiatric symptoms in 2009. Considering the findings of the 2009 neurology examiner, the highest functional impairment would be equivalent to a "1" on the TBI scale, which would equate to only a 10 percent rating. Thus, a higher staged rating is not appropriate during this period. However, the medical evidence suggests a worsening of the disorder from the time of the VA examination on August 17, 2012. Specifically, at that time, the Veteran was diagnosed with a comorbid dementia and mood disorder, and the examiner documented symptoms for rating purposes including flattened affect, depressed mood, and impairment of short and long-term memory. Consistent with the findings suggesting an increased severity, the Board will assign a 50 percent rating during the period from August 17, 2012, until October 14, 2019. The Board has considered whether a higher than 50 percent rating may be applied during that period. Nevertheless, the most probative evidence does not suggest that a higher rating is for application. 38 C.F.R. § 4.2. The Veteran's TBI symptoms again were documented as equivalent to no more than a "1" on the severity on the rating scale. The VA examiner noted that his judgment was normal, and his social interactions were described as "routinely appropriate". The examiner's list of psychiatric symptoms for rating purposes do not suggest a severity equivalent to occupational and social impairment with deficiencies in most areas. Accordingly, a higher rating than 50 percent is not for application. 38 C.F.R. § 4.7. From October 15, 2019, the Veteran was assigned a 70 percent rating, and then a 100 percent rating from August 21, 2020, based on VA examinations showing increased severity. The most probative evidence does not show that higher ratings than the above are appropriate. For example, the October 2019 VA examination showed that the severity of the disorder had increased, as indicated by the Veteran's difficulty in adapting to stressful circumstances, but neither the VA examiner nor the evidence of record supports a finding of total occupational and social impairment from that time. The August 2020 examiner documented functional impairment and symptoms, including grossly inappropriate behavior and gross impairment in thought process and communication, that are indicative of a 100 percent rating. Accordingly, the AOJ assigned a total rating from August 21, 2020, the date of the examination documenting the severity of the Veteran's major neurocognitive disorder to TBI. In sum, given the severity of the Veteran's disorder as documented by VA examinations and by the evidence of record, higher staged ratings are not appropriate from October 15, 2019. 38 C.F.R. §§ 4.7. The Board has considered the Veteran's lay testimony. However, disability ratings are determined by application of the rating schedule, which does not support a higher rating in this case. 38 C.F.R. § 4.2. Given the record before it, the Board finds that a 50 percent rating may be assigned for the Veteran's major neurocognitive disorder due to TBI from August 25, 2012, until October 14, 2019. However, no other higher staged ratings may be assigned during the rating period. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Higher Staged Ratings Seizure Disorder The Board finds that the most probative evidence does not reach the level of equipoise in the claim for higher staged ratings for a seizure disorder. Therefore, the claim must be denied. The Veteran's seizure disorder is rated under 38 C.F.R. § 4.124a, DC 8999-8910. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under DC 8910, grand mal epilepsy is rated under the General Rating Formula for Major and Minor Seizures, which provides a 100 percent rating for averaging at least one major seizure per month over the last year; an 80 percent rating for averaging one major seizure in three months over the last year or more than 10 minor seizures weekly; a 60 percent rating for averaging one major seizure in four months over the last year or more than 9-10 minor seizures per week; a 40 percent rating for at least one major seizure in the last 6 months or 2 in the last year, or averaging at least 5-8 minor seizures weekly; a 20 percent rating for at least 1 major seizure in the last 2 years, or at least 2 minor seizures in the last 6 months; and a 10 percent rating for a confirmed diagnosis of epilepsy with a history of seizures. 38 C.F.R. § 4.124a, DC 8910. When continuous medication is necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. Id. at Note (1). Turning to the evidence of record, the Veteran underwent a VA examination in November 2009. He stated that he began to have seizures in 2004, but it took several months to diagnose his symptoms. He was placed on medication, and reported that he did not have any seizures since taking medication. He stated that he had not had a seizure in a few years. The Veteran underwent another VA examination in August 2012. He stated that he had a slight episode one month ago. The examiner found that continuous medication was required for control of the seizure disorder, but noted that the Veteran had not had any other treatment (such as surgery) for the disorder. He observed that the Veteran reported having seizures witnessed by his wife and other people, and documented that the Veteran reported having 0 to 1 minor seizures over the past 6 months. The examiner found that the Veteran never had major seizures, but did have 0 to 1 minor psychomotor seizures over the past 6 months. In October 2019, the Veteran appeared for a VA examination. He reported that his condition was stable, that he had not had a seizure in a while, and that as long as he takes medication he is okay. He indicated that the most recent date of seizure activity was 2009. The examiner found that the Veteran had 0 to 1 minor seizures over the past 6 months and had never had major seizures. The examiner further found that the Veteran did not have minor psychomotor seizures, but had a history of major psychomotor seizures with none in the past 2 years. The Veteran attended a VA examination in August 2020. He indicated that he was still taking medication to control his seizures. The examiner listed 0 to 1 minor seizures in the past 6 months, and a history of major seizures with none in the past two years. She found that the Veteran had a history of minor psychomotor seizures occurring 0 to 1 in the past six months, but no major psychomotor seizures. The Board has reviewed private and VA treatment records. However, such records do not reflect that the Veteran's seizure disorder resulted in functional impairment to the extent that a higher rating may be assigned. 38 C.F.R. § 4.2. After careful review of the record, the Board finds that the most probative evidence does not suggest that the Veteran's seizure disorder caused functional impairment to the extent that a rating in excess of 10 percent may be assigned. See 38 C.F.R. § 4.124a, DC 8910. None of the VA examiners documented functional impairment consistent with a higher rating, such as one major seizure in the last two years or at least 2 minor seizures over a 6-month period, to the extent that a higher rating may be assigned. Moreover, the Veteran has indicated that his condition is stable on medication, which suggests that a 10 percent rating is appropriate. 38 C.F.R. § 4.2. The Veteran's lay reports have been considered. He is competent to describe symptoms that are capable of ordinary observation and to report his perceptions of how his seizure disorder impacts his daily life. However, disability ratings are determined by the application of the rating schedule, which does not allow for a higher rating in this case based on the Veteran's functional impairment. In sum, the most probative evidence does not support the claim of entitlement to a rating in excess of 10 percent for a seizure disorder, and the claim must be denied. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.