Citation Nr: 21042102 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-63 747 DATE: July 12, 2021 ORDER Entitlement to a compensable rating for posttraumatic headaches associated with traumatic brain injury (TBI) prior to December 18, 2020 is denied. Entitlement to a rating of 30 percent, but not higher, from December 18, 2020 for posttraumatic headaches associated with traumatic brain injury (TBI) is granted. Entitlement to a rating in excess of 0 percent for traumatic brain injury (TBI) from December 15, 2014 and 10 percent from December 18, 2020 is denied. FINDINGS OF FACT 1. Prior to December 18, 2020, the Veteran's service connected headaches associated with TBI have been manifested by pain, but without characteristic prostrating attacks. 2. From December 18, 2020, the Veteran's posttraumatic headaches associated with traumatic brain injury (TBI) consisted of characteristic prostrating attacks occurring on an average of once a month over the last several months. 3. Prior to December 18, 2014, the evidence of record does not reflect the Veteran's TBI was manifested by any facet equating to higher than a level "0" in any of the facets of cognitive impairment and other residuals of TBI not otherwise classified. under the Table of Facets of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. 4. From December 18, 2020, the Veteran's TBI residuals have been manifested by no more than level "1" impairment in any of the facets of cognitive impairment and other residuals of TBI not otherwise classified. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for posttraumatic headaches associated with TBI prior to December 18, 2020 have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.121, 4.124a, Diagnostic Codes 8045-8100. 2. The criteria for entitlement to a 30 percent rating, but not higher, for posttraumatic headaches associated with TBI from December 18, 2020 have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.121, 4.124a, Diagnostic Code 8100. 3. The criteria for entitlement to a rating in excess of 0 percent for traumatic brain injury from December 15, 2014 and 10 percent from December 18, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1952 to January 1956 to include service during the Korean Conflict. In June 2018, the Veteran testified during a videoconference hearing before the undersigned. Subsequently, in May 2019, the Veteran testified at another videoconference hearing over which a second Veterans Law Judge of the Board presided. A transcript of each hearing has been associated with the claims file. In January 2020, the issues were remanded for additional development including VA examinations based on the reported worsening symptoms at the June 2018 and May 2019 Board hearings. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable rating for posttraumatic headaches associated with traumatic brain injury (TBI) The Veteran contends that his headache symptoms have worsened and warrant a compensable disability rating. The Veteran's posttraumatic headaches with TBI is rated as 0 percent under 38 C.F.R. § 4.124a , DC8100. DC 8100 provides a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the last several months. See 38 C.F.R. § 4.124a, DC 8100. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. Id. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating." By way of reference, the Board notes that DORLAND's ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." During a June 2015 VA TBI examination, the Veteran reported having left temporal headaches with nausea and sensitivity to light and sound lasting 20 minutes to an hour and a half for about 10 years after his in-service motor vehicle accident. He stated the headache frequency and severity decreased substantially and for the last 50 years he has "mild" headaches on the left side, unaccompanied by gastrointestinal symptoms, phonophobia or photophobia, lasting approximately a day and occurring about every two months. The VA examiner diagnosed posttraumatic headache with symptoms of pain localized to one side of the head, the left side. The Veteran did not experience non-headache symptoms associated with the headaches, which typically lasted one day. The examiner noted the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner stated that given the Veteran's history and complaints, the likely diagnosis is very mild posttraumatic headache caused by the 1954 in-service motor vehicle accident. A July 2016 VA examination shows that the Veteran reported that his headaches occurred on the left side of his head, and he described the pain as repetitive and sharp, variable in severity, occurring a couple of times a week, lasting five to seven hours, and associated with light sensitivity and numbness on his left side. The examiner described the Veteran's headache symptoms as pain localized to the left side of the head and included non-headache symptoms including sensitivity to light and sensory changes (such as feeling pins and needles in the extremities), lasting less than one day in duration. The examiner indicated that the Veteran did not have prostrating attacks. At his Board hearings, the Veteran testified that he had problems with lights and sounds due to his headaches, and he had to lay in a quiet, dark room approximately twice per week or four times per month. As the Veteran suggested a worsening of his headache symptoms, in January 2020, the Board remanded the issue for a new VA examination to assess the current severity of his headaches and to ask the Veteran to identify any private providers who treated his TBI headaches. The Veteran has not provided any private physician treatment notes for headaches to date. At a December 2020 VA headaches examination, the Veteran reported his headache pain was pulsating or throbbing, worsened with activity, was typically on the left side, and caused sensitivity to light. According to the Veteran, a typical headache lasted less than a day. The examiner noted prostrating attacks of headache pain with less frequent attacks. The Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. As for whether the Veteran's headaches impacted his ability to work, the examiner stated the Veteran had at least a weekly headache that can impact at least one hour to have a break to sit in a dark quiet room. As the December 2020 VA examiner found the Veteran had characteristic prostrating headaches at least weekly for at least an hour that require him to sit in a dark, quiet room a rating of 30 percent, but not higher, for posttraumatic headaches associated with TBI is warranted. The Board finds a 50 percent rating is not warranted as there is no evidence the Veteran has very frequent completely prostrating attacks productive of severe economic inadaptability. 2. Entitlement to a rating in excess of 0 percent for traumatic brain injury from December 15, 2014 and 10 percent from December 18, 2020 The Veteran contends that a compensable rating is warranted for his traumatic brain injury prior to December 18, 2020 and a rating in excess of 10 percent is warranted from December 18, 2020. The Veteran's TBI is rated under Diagnostic Code (DC) 8045, which states that 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 a traumatic brain injury), emotional/behavioral, and physical. 38 C.F.R. § 4.124a , Diagnostic Code 8045. 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. Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, is to be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/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 evaluated 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI; residuals not listed in DC 8045 that are reported on an examination are to be evaluated under the most appropriate diagnostic code, with each condition rated separately, as long as the same signs and symptoms are not used to support more than one evaluation and combined under 38 C.F.R. § 4.25 . 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. An additional consideration is the potential 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. 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 level 5, 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 rating if total is the level of evaluation for one or more facets. If no facet is evaluated as total, assign the overall percentage rating 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 rating if 3 is the highest level of evaluation for any facet. Id. The current version of Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental, neurologic, or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one rating based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single rating 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 rating 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. Those 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. That classification does not affect the rating assigned under diagnostic code 8045. At the June 2015 VA TBI examination, the Veteran reported that he had difficulty understanding written material since the accident and also stated he was told he had dyslexia. The Veteran stated that he is able to comprehend oral instruction and was able to master carpentry, the work he did until he retired at age 55. The examiner noted no complaints of impairment of memory, attention, concentration, or executive functions and noted normal judgment, routinely appropriate social interaction, normal orientation, normal motor activity, visual spatial orientation, subjective symptoms that do not interfere with work, instrumental activities of daily living or family or other close relationships, no neurobehavioral effects, and normal consciousness. Subjective residuals were noted as headaches and dyslexia. A July 2016 VA TBI examination shows the Veteran reported he was dyslexic; specifically stating that he had difficulty reading and writing and was unable to use a computer. He denied other cognitive deficits. Regarding the facets of TBI related symptoms, the examiner indicated that all facets were within normal limits, except communication. In this regard, the examiner indicated that that the Veteran was unable to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time; the Veteran may rely on gestures or other alternative modes of communication, but he is able to communicate his basic needs. The Veteran had no complaints of impairment of memory, attention, concentration, or executive functions. The examiner noted normal judgment, routinely appropriate social interaction, normal orientation, normal motor activity, visual spatial orientation, subjective symptoms that do not interfere with work, instrumental activities of daily living or family or other close relationships, no neurobehavioral effects, and normal consciousness. Headaches were noted as a subjective residual symptom. At the Board hearings the Veteran testified that he suffered from symptoms of confusion, short term memory loss, vision problems, and anxiety as a result of his TBI. Based on the Veteran's claims of worsening, in January 2020, the Board remanded the issued for a VA examination to assess the current severity of the Veteran's TBI disability. A December 2020 VA TBI examination shows the Veteran had a complaint of mild memory loss, attention, concentration or executive functions, but without objective evidence on testing. For this facet, the examiner noted the Veteran had difficulties performing math skills and with recall of animals even though he lived on a farm when he was younger. The Veteran's visual spatial orientation was noted to be mildly impaired (such as occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions). The examiner noted the Veteran has GPS difficulties and used a paper map to get to the examiner's office. The examiner noted normal judgment, routinely appropriate social interaction, normal orientation, normal motor activity, subjective symptoms that do not interfere with work, instrumental activities of daily living or family or other close relationships, no neurobehavioral effects, no communication deficits, and normal consciousness. The evaluation assigned for cognitive impairment and other residuals of traumatic brain injury not otherwise classified is based upon the highest level of impairment for any facet as determined by examination. Only one disability evaluation is assigned for all the applicable facets. In this case, the overall evidence warrants a 10 percent evaluation based upon the evidence of record. Specifically, the highest level of impairment of any facet in this case is a level "1." Regarding the memory, attention, concentration, and executive functions facet, the Veteran was assigned a level of impairment of "1" based on his reports of mild loss of memory. In order to warrant a higher level of impairment of "2", the evidence would have to show objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions. For the judgment facet, the Veteran was assigned a "0" level of impairment based on normal judgment at all the VA examinations. For the facet social interaction, a "0" level of impairment is appropriate for the entire appeal period. The June 2015, July 2016, and December 2020 VA examinations documented that the Veteran's social interaction was appropriate, and there is no other evidence that the Veteran's social interaction was inappropriate. For the facet orientation, a "0" level of impairment is appropriate for the entire appeal period. Treatment records and VA examination reports found that the Veteran was regularly oriented in all four aspects. There is no clinical evidence of record showing impaired orientation. For the facet motor activity, a "0" level of impairment is appropriate for the entire appeal period. The June 2015, July 2016, and December 2020 VA examiners noted normal motor activity, and this is supported by the evidence of record. For the facet visual spatial orientation, a "1" level of impairment is appropriate from December 18, 2020 as there was clinical evidence of mild impairment in this area. For the facet subjective symptoms, a "0" level of impairment is appropriate. The only subjective symptoms reported by the Veteran is headaches and some reported dyslexia that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. For the facet neurobehavioral effects, a "0" level of impairment is appropriate as there were no neurobehavioral effects found on examination. For the facet communication, a "0" level of impairment is appropriate. The examiners found that the Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. For the facet consciousness, a "0" level of impairment is assigned because the Veteran demonstrates no impairment in this area and there is no clinical evidence of record showing impaired consciousness. Thus, the Veteran's highest level of impairment in any facet is a "1." Accordingly, a rating in excess of 10 percent is not warranted. The Veteran is competent to describe the symptoms related to his residuals of a TBI. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to address complex medical issues, such as identifying a specific level of disability according to the appropriate Diagnostic Code. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, while credible in his belief that a higher rating is warranted, the Veteran's contentions regarding the appropriate rating are outweighed by the competent medical evidence that evaluates the true extent of his disability. The Board has considered whether any other potentially relevant Diagnostic Codes would yield higher ratings for the Veteran's TBI residuals. However, when a condition is specifically listed in the Rating Schedule, it may not be rated by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (pes planus is specifically rated under Diagnostic Code 5276; hence an analogous rating under Diagnostic Code 5284 was not permitted). Thus, Diagnostic Code 8045 is the most appropriate considering the TBI diagnosis and symptoms. The Board finds that, prior to December 18, 2020, a noncompensable rating was warranted as a "0" level of impairment was assigned for all facets, and from December 18, 2020, the Veteran's TBI residuals most nearly approximated the criteria for a rating of 10 percent, but no higher. As a preponderance of the evidence is against the award of a rating in excess of 0 percent prior to December 18, 2020, and 10 percent from December 18, 2020, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.