Citation Nr: 21041900 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-13 542 DATE: July 10, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected traumatic brain injury (TBI) residuals, other than service-connected posttraumatic stress disorder (PTSD) and migraine headaches, is denied. Entitlement to a compensable disability rating for service-connected migraine headaches associated with a TBI is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from April 14, 2016, to November 15, 2019 is granted. FINDINGS OF FACT 1. For the period on appeal, the Veteran's TBI residuals, other than his PTSD and migraine headaches, have been manifested by no more than Level 1 impairment of any cognitive function. 2. For the period on appeal, the Veteran's migraine headaches have been manifested by pulsating or throbbing head pain on both sides of the head, nausea, and sensitivity to light and sound. Prostrating headaches occurring on average once in two months are not shown. 3. From April 14, 2016, to November 15, 2019, the Veteran's service-connected disabilities precluded him from obtaining or maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected TBI residuals, other than service-connected PTSD and migraine headaches, have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 2. The criteria for a compensable disability rating for migraine headaches associated with a TBI have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. 3. The criteria for entitlement to a TDIU from April 14, 2016, to November 15, 2019 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 2001 to February 2005, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for the Veteran's TBI and migraine headaches. The Veteran appeals the initial ratings assigned. The issues were previously before the Board in February 2020 where they were remanded for additional development. They now return for further appellate review. The Board also notes that the Veteran's TDIU claim was granted by the RO in July 2020, effective November 15, 2019. As the appeal period for the Veteran's TDIU claim dates back to April 14, 2016, the date of his initial service connection claims for his TBI and headaches, the period prior to November 15, 2019 for the TDIU claim remains on appeal. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2019. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Increased Ratings The Veteran contends that his service-connected TBI and headache residuals are worse than contemplated by the currently assigned ratings. For the reasons that follow, the Board finds that increased ratings are not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. A rating in excess of 10 percent for a TBI. The Board notes that the Veteran is already service-connected for migraine headaches as a residual of an in-service TBI, the rating for which is addressed later in this decision. Additionally, while the rating for which is not currently on appeal, the Veteran is separately service-connected for PTSD. Thus, for purposes of this decision, the focus of the Veteran's claim revolves around residuals of a TBI other than migraines or symptoms that have not already been attributed to his service-connected PTSD. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 ("There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation"). TBI is evaluated under Diagnostic Code 8045. 38 C.F.R. § 4.124a. Under Diagnostic Code 8045, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 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. Adjudicators are to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to 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, they are to 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. 38 C.F.R. § 4.124a. Diagnosis of a mental disorder is to be evaluated as emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders). When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a. Physical (including neurological) dysfunction is evaluated based on the following, under an appropriate Diagnostic Code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The 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, they are evaluated under the most appropriate Diagnostic Code. Each condition is evaluated separately and combined under § 4.25, as long as the same signs and symptoms are not used to support more than one evaluation. 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. Id. 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. Adjudicators are to assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," adjudicators are 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. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. Turning to the evidence, the Veteran was afforded a VA examination for his TBI in May 2016, for the purposes of his initial service connection claim, and again in November 2020 subsequent to the Board's previous remand. Both examination reports reflect that the Veteran has a history of a head injury in service. On clinical evaluation, the VA examiners observed no evidence of impairment of judgment, orientation, motor activity, communication, or consciousness. The examination reports did note, at worst, mild impairment of visual spatial orientation, neurobehavioral effects, and memory/attention/concentration/executive function. While the latter examination also noted that the Veteran's social interaction was frequently inappropriate, i.e., irritability and anxiety in crowds, the examiner attributed this to his separately service-connected PTSD. Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 10 percent for his service-connected TBI. In this regard, the Board has considered the 10 facets discussed above and in Diagnostic Code 8045. The Veteran's disability has been manifested by, at highest, a "1" level of impairment. The Board relies on both VA examinations which indicated that the Veteran had no complaints of impairment of judgment and was always oriented and had normal motor activity. He was able to communicate and exhibited normal consciousness, and any neurological symptoms did not interfere with work or social interactions. While it was also noted that he has difficulty focusing, fatigue, and hypersensitivity to lights and sounds, again the Veteran is separately service-connected for his migraines, the rating for which is addressed further below in this decision. In finding against the next higher rating, the Board notes that the record does not support a finding of impairment at a level of 2, 3, or total impairment in any of the 10 facets in the table of "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" as to warrant a higher disability rating at any time throughout the duration of the appeal. In this regard, the evidence does not show judgment that is mildly impaired; memory, attention, concentration, or executive function complaints, spatial orientation, and consciousness no more than mildly impaired; or occasional disorientation in two of the four aspects. There is no indication of motor activity or consciousness that is less than normal, and the Veteran was able to communicate by and comprehend written and spoken language. Thus, the Board finds that the competent medical evidence weighs against a finding that the Veteran's level of impairment was severe enough to warrant an impairment of level of 2 or higher. While the Board acknowledges that the November 2020 examiner also noted that the Veteran's social interaction was frequently inappropriate, again, the examiner attributed this to his separately service-connected PTSD, and the medical record, including several examinations to assess the nature and severity of the Veteran's PTSD, do not attribute this any of its symptoms solely to the in-service TBI. During the entire period on appeal for the rating assigned for the Veteran's TBI, he is already in receipt of a 70 percent disability rating for his PTSD. Thus, to award the Veteran an increased rating for his TBI based on any psychiatric symptoms would constitute impermissible pyramiding. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. Likewise, the Board finds that there are no other subjective or physical residuals related to the Veteran's TBI. While the record reflects that the Veteran has claimed both hearing loss and tinnitus, no VA examination of record, to include audiological examinations and the above TBI examinations, have attributed his hearing loss or tinnitus to his in-service head injury. The Board again notes that while the record reflects a diagnosis of PTSD, this disability is separately service-connected, and the record is negative that any of its symptoms can be separately attributed to his TBI. Additionally, service connection for headaches has been awarded separately, and as will be discussed in further detail below, the Veteran's headaches do not exhibit symptoms that more nearly approximate a rating in excess of what has already been contemplated by his current rating for headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. In sum, other than the Veteran's headaches and PTSD symptoms for which service-connection is separately awarded, at no point during the appeal has the evidence indicated that a rating in excess of 10 percent is warranted for the Veteran's TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Therefore, an increased rating is not warranted, and the evaluation currently assigned for the Veteran's TBI is most appropriate for the entire period under consideration. 2. A compensable rating for migraine headaches. The Veteran is currently assigned a separate noncompensable rating for headaches as a residual of his TBI. Under Diagnostic Code 8100, a 10 percent rating is assigned when there are characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned when there are migraines with characteristic prostrating attacks occurring on average once a month over the last several months; and a 50 percent rating is warranted when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As headaches were noted by VA examiners during the Veteran's aforementioned TBI examinations, he was also afforded separate VA headache examinations. In May 2016, he reported pulsating or throbbing head pain on one or both sides of the head, with nausea, and sensitivity to light and sound less than once per day, as well as migraines that manifested as prostrating less than once every two months. In November 2020, he reported that his headaches manifested symptoms similar to those in 2016. In contrast, however, the 2020 examiner opined that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Board nevertheless acknowledges the Veteran's complaints during the examination, as well as during his hearing before the undersigned, that that his headache attacks render him unable to focus and sensitive to light and sound. As the remaining medical evidence of record is not in significant conflict with the above findings upon VA examination, the Board finds that the evidence is against a finding that a compensable rating for his service-connected headaches is warranted. There is no indication from the evidence of record that the Veteran experiences characteristic prostrating attacks occurring on average once a month over the last several months, the criteria for a higher disability evaluation for headaches under Diagnostic Code 8100. 38 C.F.R. § 4.124a. While the Board acknowledges the Veteran's statements, including during his Board hearing, that his migraines have been more severe and frequent than are currently represented by his noncompensable rating, he did not report more than one prostrating attack every two months to either examiner. Of note, the Board ordered the Veteran a new examination in its previous remand based, in part, on his statements that his headaches were more severe than currently rated, but when given the opportunity to describe his symptomology to the VA examiner the following November 2020, he did not describe prostrating attacks at all according to the examiner, let alone for the frequency necessary for a higher disability rating. As to both claims decided above, the Board acknowledges the Veteran's lay statements that his TBI residuals and associated headaches are worse than currently evaluated. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU prior to November 15, 2019 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran originally filed claim for a TDIU on April 14, 2016, along with his claims for service connection for a TBI and associated migraines, as well as a left knee disability. Although the claim was denied and not timely appealed, as the Board noted in its previous remand the Veteran testified during the November 2019 hearing that he could not work due to his service-connected migraine headaches and traumatic brain injury. Therefore, the Board found his TDIU claim remains part and parcel of his increased rating claims for a TBI and headaches. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). The record also reflects medical opinions that his service-connected low back disability and PTSD also impact his ability to work. While the RO has granted a TDIU, it only granted the appeal effective the date of a November 15, 2019 formal TDIU application. Thus, the period prior (i.e., from April 14, 2016) remains on appeal. Prior to November 15, 2019, because the Veteran's PTSD was 70 percent disabling from at least the date of his April 14, 2016 initial service connection claims for a TBI, headaches, and a left knee disability, with a combined evaluation of 80 percent, the Veteran met the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). As noted, the RO awarded the Veteran a TDIU from November 15, 2019, which was based on a finding that the combined effects of his service-connected disabilities rendered him unable to obtain and maintain gainful employment. As the Veteran's disability ratings were the same for the period prior, the Board finds no reason why a TDIU should not have been awarded back to the date of his April 14, 2016 service connection claims, which were granted in the June 2016 rating decision that has been continuously appealed. Of note, although his first formal TDIU application in April 2016 only noted that his PTSD prevented him from securing and following any substantially gainful occupation since March 2015, his subsequent TDIU application filed on November 15, 2019, also included his now service-connected TBI and headaches, and again noted his last date of employment was in March 2015. While he reported completing two years of college education, he noted no other education or training. A January 2020 VA Form 21-4192 confirms that the Veteran left his last employer, a carpentry job, due to several issues, including those associated with his PTSD, headaches, and back pain. VA examinations afforded between 2016 and 2019 to assess the nature and severity of his back disability, left knee disability, PTSD, and TBI residuals (which includes his headaches) note that the Veteran could not sit or stand for prolonged periods, had difficulty climbing and bending, suffered daily headaches that made him sensitive to light and sound, and had periods of irritability due to his PTSD. Even if the Board were to determine that the Veteran's musculoskeletal disabilities did not prevent him from an occupation where he could remain seated, the Board assumes that his higher-level education was for the purposes of his previous occupations in carpentry and security. The record does not reflect any education, training, or work history that would suggest he could have worked in any actual sedentary "desk job" during this period. The Board also notes that the Veteran is in receipt of Social Security Administration (SSA) disability benefits for the entire appeal period due to his PTSD, TBI, and musculoskeletal disabilities, all of which are also service-connected disabilities for VA purposes. See May 2018 SSA Disability Determination. While SSA determinations are not binding on the Board, they are relevant, and the records relied upon to make SSA determinations are probative evidence, specifically in consideration of the Veteran's claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). Based on the foregoing, and for the same reasons the RO determined a TDIU was warranted from the date of his formal TDIU application on November 15, 2019, the Board finds no reason to suspect that the combined effects of his service-connected disabilities did not render him unemployable for the appeal period prior. Entitlement to a TDIU from April 14, 2016, to November 15, 2019 is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.