Citation Nr: 22012885 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 12-30 672 DATE: March 7, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI) is denied. Entitlement to an earlier effective date of February 23, 2011, for the 30 percent rating for the Veteran's migraines, is granted. Entitlement to service connection for a psychiatric condition, to include as secondary to TBI, is granted. Entitlement to an effective date earlier than August 22, 2013 for the grant of service connection for tinnitus is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 30, 2015 is remanded. FINDINGS OF FACT 1. The Veteran's TBI residuals are best characterized as productive of level 1 impairment. 2. The Veteran's migraine headaches manifested as characteristic prostrating attacks occurring on average once a month over the last several months for the period from February 23, 2011. 3. The Veteran's psychiatric condition was related to his service connected TBI. 4. The Veteran's claim for service connection for tinnitus was denied in a February 2012 rating decision. The Veteran submitted a timely notice of disagreement and, following the issuance of a Statement of the Case (SOC) in October 2012, the Veteran submitted a timely VA Form 9. The Veteran thereafter withdrew the appeal of the claim for service connection for tinnitus, and the February 2012 rating decision became final. 5. The Veteran's claim to reopen the previously denied claim for service connection for tinnitus was received by VA on August 22, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8045. 2. The criteria for entitlement to an earlier effective date of February 23, 2011 for the 30 percent rating for the Veteran's migraines are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8100. 3. The criteria for entitlement to service connection for a psychiatric condition, to include as secondary to TBI, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to an effective date earlier than August 22, 2013 for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 5110, 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 3.400, 20.200, 20.201, 20.202, 20.204, 20.302, 20.1100, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1957 to January 1958. He died in April 2020. The appellant is the Veteran's surviving spouse, and she has been substituted as the appellant in this case. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter has previously been before the Board, most recently in October 2018. At that time, the Board, among other things, remanded the claims for an increased rating for TBI and a TDIU as inextricably intertwined with claims for service connection for sleep apnea and a low back disability. The Board notes that the Veteran subsequently opted the claims for service connection for sleep apnea and a low back disability into the Appeals Modernization Act (AMA) system. As such, those claims are not at issue on this appeal. The Board also notes that the issues of service connection for a psychiatric disorder and an earlier effective date for tinnitus are part of an appeal filed by the Veteran in January 2016, from a December 2015 Statement of the Case (SOC). The Board acknowledged that these issues were on appeal in an October 2016 decision, but declined to adjudicate them at that time because of the pending request for a hearing. The Veteran subsequently withdrew his request for a hearing. However, these issues have yet to be adjudicated by the Board, and will be considered as part of this appeal. Finally, the Board notes that the Veteran was afforded a hearing in August 2013 before a Veterans Law Judge (VLJ) who has since retired. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107; 38 C.F.R. § 20.707. The appellant was notified of this requirement and offered the opportunity to request a new hearing in a January 2022 letter. No response has been received and, accordingly, the Board will proceed in addressing the appeal. Increased Ratings Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). TBI and Migraines The Veteran is assigned a 10 percent rating for his TBI, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045. That code provides three main areas of dysfunction that may result from TBIs 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. 38 C.F.R. § C.F.R. § 4.124a. 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 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" (hereinafter "TBI Table"). Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the TBI Table. However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, should be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the TBI Table. Emotional/behavioral dysfunction is evaluated 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, emotional/behavioral symptoms are evaluated under the criteria in the TBI Table. 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. Diagnostic Code 8045 stipulates that the preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed here that are reported on an examination are evaluated under the most appropriate diagnostic code. Each condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and each separately rated condition is combined under § 4.25. The evaluation assigned based on the TBI Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The TBI Table 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 5th level, the highest level of impairment, and 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. A 100-percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The regulation provides the following example: assign a 70 percent rating if 3 is the highest level of evaluation for any facet. In other words, one rating is to be assigned based upon the highest level of severity for any of the 10 facets of cognitive impairment. As relevant here, Note (1) to Diagnostic Code 8045 provides: There may be an overlap of manifestations of conditions evaluated under the TBI Table 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. The appellant contends that Note 1 applies here and an earlier effective date for the Veteran's migraine headaches should be assigned as part and parcel of the claim for an increased TBI rating as a compensable manifestation of the Veteran's TBI. The Veteran's migraines were noted as residuals of the Veteran's TBI in a July 2017 VA examination and determined to be associated with the Veteran's TBI as part of the June 2018 rating decision. A 30 percent rating was assigned effective July 6, 2015 pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Prior to that, the Veteran's migraines were assigned a noncompensable rating from February 23, 2011. The Board agrees with the appellant's assertion that the claim for an earlier effective date for the 30 percent rating for migraines is part and parcel of the claim for an increased rating for TBI. A review of the record reflects that the evidence supports a rating of 30 percent from February 23, 2011. Diagnostic Code 8100 provides a 30 percent rating for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. The phrase "characteristic prostrating attacks" is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The Veteran consistently reported to treatment providers that he experienced chronic, frequent headaches for many years. A September 2011 VA treatment note documented the Veteran's report that he had 3 to 4 headaches per week for 40 to 50 years and that, at worst, he would rate them as 7 out of 10. A September 2014 VA treatment note also documents chronic headaches that could be severe. The Veteran reported to the November 2016 and July 2017 VA examiners that his headaches had been occurring for 40 to 50 years and that he had to go to bed when they became unbearable. In a March 2011 statement, the Veteran described his symptoms as including reaction to light and noise. In May 2016, the Veteran described his headaches as occurring 2 times a week and requiring him to find a dark quiet place to lay down because of unbearable pain. The Veteran stated that the headaches were debilitating, made him nauseous, prevented him from driving and required him to stay in bed for at least a day, sometimes longer. Based on the foregoing, the Board finds that the Veteran's migraines manifested as characteristic prostrating attacks occurring on an average once a month over the last several months throughout the claim period. Although the VA examiners determined that the Veteran did not experience characteristic prostrating attacks, the Veteran's lay reports to medical providers and his lay statements reflect that he experienced multiple headaches per week that were at times unbearable, requiring him to lay down in a dark quiet place. The Veteran routinely noted that he had been experiencing headaches for 40 to 50 years. The Board finds that the competent and credible evidence supports a finding that the Veteran was entitled to a 30 percent rating for his migraine headaches throughout the claim period. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Accordingly, an earlier effective date of February 23, 2011 for the 30 percent rating for migraine headaches is warranted as part and parcel of the claim for an increased disability rating for TBI. As reflected in this decision, the appellant is also entitled to an award of service connection for a psychiatric disorder as secondary to TBI. The Veteran was also separately rated for an unspecified neurological condition associated with TBI. As the migraine headache, psychiatric condition and neurological condition are rated separately, the symptoms associated with them are not considered part of the analysis for an increased disability rating for TBI. To avoid impermissible pyramiding, the evaluation of the rating for TBI is limited to whether an increased rating was warranted for all other areas of dysfunction as specified under Diagnostic Code 8045. 38 C.F.R. § 4.14. The record reflects that the Veteran was afforded VA examinations for his TBI in March 2014, August 2015, November 2016 and July 2017. With respect to the facets, the examinations consistently reflect that the highest level of impairment was level 1 for mild memory loss. The Veteran was noted to have mild memory loss at each of the examinations. The examiners also determined that the Veteran had normal judgment, routinely appropriate social interaction and normal motor activity, visual spatial orientation and consciousness. The Veteran was also noted to be able to communicate. The Board finds the VA examinations probative and entitled to weight on the issue of the appropriate rating for TBI. The Board acknowledges the appellant's complaints that the Veteran experienced debilitating headaches and depression that interfered with his social and occupational functioning, but those symptoms are or will be separately rated. The Board also notes that the evaluation by the private neuropsychologist submitted in August 2016 that described the Veteran as having moderate or severe functional impairments based on his movement disorder, cognitive impairment and depression. As noted, however, the Veteran's symptoms as described by the private evaluator are rated separately from this TBI. Based on the foregoing, the Board finds that there is no evidence of a level higher than 1 in any of the facets and, thus, no basis for a disability rating in excess of 10 percent for TBI. Accordingly, the claim for an increased disability rating for TBI is denied. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may also be granted where a disability is proximately due to or aggravated by an already service-connected disability. 38 C.F.R. § 3.310. To establish secondary service connection for a disability there must be (1) a current disability (for which secondary service connection is sought); (2) an existing service-connected disability, and (3) evidence that the current disability for which service connection is sought was either (a) caused or (b) aggravated by the service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Psychiatric Condition The appellant contends that the Veteran's psychiatric condition was related to his service connected TBI. The record reflects that the Veteran had a disability as the VA and private treatment records document his long-term depression and anxiety. VA examinations in September 2011 and November 2016 VA noted a diagnosis of adjustment disorder with mixed anxiety and depressed mood. A July 2016 evaluation by a private neuropsychologist also noted that the Veteran had mood disorder with depressive features. Based on the documented diagnoses, the appellant is able to establish the first element for secondary service connection. The appellant is also able to establish the second element based on the Veteran's service connection for TBI. The remaining question is thus whether the Veteran's psychiatric condition was related to his TBI. The record contains conflicting evidence on the nexus element for secondary service connection. The private neuropsychologist opined that the Veteran's chronic depression and anxiety was more likely than not related to his TBI. The neuropsychologist based this finding on the lay statements of the Veteran, his wife and his sister documenting that the Veteran's symptoms started soon after his in-service motor vehicle accident. A September 2012 letter from the Veteran's treating psychiatrist noted that the Veteran had been under his care for 20 years for depression and anxiety, among other conditions, and that it was possible that the in-service motor vehicle accident caused the Veteran's symptoms. A December 2015 VA examiner opined that the Veteran's mental disorder was less likely than not related to service because of the lack of evidence of such a condition or treatment in service. The Board finds the opinion of the private neuropsychologist probative and entitled to weight. The private evaluator considered the relevant medical records as well as the competent lay evidence and offered an adequate rationale for the conclusion that the Veteran's psychiatric condition was related to his TBI. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion outweighs the negative nexus opinion offered by the December 2015 VA examiner because the examiner did not consider the competent lay reports about the onset of the Veterans symptoms. Based on the foregoing, the claim for service connection for a psychiatric condition, as secondary to TBI, is granted. Entitlement to an earlier effective date for service connection for tinnitus If a claimant files an application for service connection with VA, and the claim is disallowed, he has the right to appeal that disallowance to the Board. See, e.g., 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the claimant does not initiate an appeal within one year, or if the claimant fails to perfect the appeal by filing a timely substantive appeal, or if the claimant initiates a timely appeal and the appeal is later withdrawn or denied, the disallowance becomes final. See 38 C.F.R. §§ 20.204, 20.302, 20.1100, 20.1103. Any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 U.S.C. §§ 5110 (a), (i), 5108; 38 C.F.R. §§ 3.156 (c), 3.400(q), (r). Here, the Veteran's initial claim for service connection for tinnitus was denied in a February 29, 2012 rating decision. The Veteran timely appealed that decision, but withdrew the appeal at the August 2013 Board hearing. The withdrawal of the appeal was noted as part of the January 2014 Board decision. The Veteran thereafter filed a claim received by VA on August 22, 2013. The RO treated the claim as including a claim for tinnitus and granted service connection, effective August 22, 2013. As the prior denial of the claim for service connection became final when the Veteran withdrew the appeal, there is no basis to award an effective date earlier than August 22, 2013, when VA received the application to reopen the previously denied claim. 38 U.S.C. § 5110(a). Accordingly, the claim for an earlier effective date for service connection for tinnitus is denied. REASONS FOR REMAND TDIU The appellant contends that the Veteran should have been awarded a TDIU prior to the September 30, 2015. The RO assigned that date as the effective date because it was the date the Veteran met the schedular criteria for a TDIU. In light of the above decision, the Board has granted service connection for a psychiatric condition and has granted an earlier effective date of February 23, 2011 for the 30 percent disability rating for migraines. The RO's implementation of these awards will impact the Veteran's schedular eligibility for a TDIU. Accordingly, remand is warranted. The matters are REMANDED for the following action: Assign an initial rating for the service-connected psychiatric condition. Thereafter, adjudicate the issue of entitlement to a TDIU prior to September 30, 2015. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.