Citation Nr: 22015229 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-63 398 DATE: March 16, 2022 ORDER Entitlement to an initial compensable rating for service-connected traumatic brain injury (TBI) is denied. Entitlement to a total disability rating based upon unemployability (TDIU) is denied. FINDINGS OF FACT 1. The most probative evidence of record persuasively weighs against finding that the Veteran's service-connected TBI results in any facets, residuals, or impairment. 2. The most probative evidence of record persuasively weighs against finding that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8045. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from January 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in April 2020 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to an initial compensable rating for service-connected traumatic brain injury (TBI) The Veteran's service-connected TBI disability is evaluated under Diagnostic Code (DC) 8045 of the Rating Schedule. 38 C.F.R. § 4.124a. There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, 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. Cognitive impairment is evaluated under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. 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, are to be evaluated separately, 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. Emotional/behavioral dysfunction is evaluated under § 4.130 (Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms should be evaluated under the criteria in the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Physical (including neurological) dysfunction should be 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. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. 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." Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Pyramiding, known as the evaluation of the same disability or same manifestation under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. The Veteran's disability picture is complicated in that he had a post-service aneurism that caused a stroke with significant residuals. In March 2021, the Board remanded the claim to determine whether it was medically possible to differentiate between the Veteran's TBI symptoms and his non-service-connected stroke residuals, and whether the TBI caused the stroke. Upon remand, the November 2021 VA examiner opined that the Veteran's June 2013 Cerebral Vascular Accident (CVA) is less likely than not proximately due to or aggravated by the Veteran's service-connected traumatic brain injury (TBI) disability. The November 2021 VA examiner opined that, per the medical literature, the most common cause of intracranial aneurysms are genetics as well as hypertension, atherosclerosis, cigarette smoking, and alcohol consumption. Relative to the aforesaid factors, the November 2021 VA examiner cited to the Veteran's MRI noting that his mild microvascular white matter ischemic changes, namely the stroke he suffered resulting in the June 2013 CVA, are likely related to his long-standing hypertension and/or diabetes, which are both non-service connected conditions. See July 23, 2021 VA treatment record. VA treatment records support the finding of long-standing hypertension. As this relates to the Veteran's service-connected TBI disability, the VA examiner reviewed the extensive service treatment records, documenting the original injury that caused the concussion, and concluded that the Veteran does not suffer any facets, residuals, or impairments due to the very mild TBI in service, in that the disability resolved as evidenced by the 1975 separation examination, as well as post service treatment records indicating no pertinent past medical history. Notably, the VA examiner associated the Veteran's current facets and residuals, to include his memory impairment, with the 2013 CVA; here, the VA examiner relied in part on the Veteran's statements that he did not begin suffering from neurological impairments until after the 2013 CVA. See April 2014 VA examination report. While the Board acknowledges the Veteran's April 2020 Board hearing testimony of having suffered "episodes" prior to June 2013 CVA, the Veteran also stated that he was being monitored for high blood pressure which the November 2021 VA examiner opined is the likely cause of his 2013 CVA, in that hypertension is a common cause of intracranial aneurysms. Thus, the evidence of record persuasively weighs in favor of a finding here that the Veteran's aforesaid symptomatology prior to the June 2013 CVA is more likely than not attributable to his non-service-connected hypertension condition, rather than his service-connected TBI disability. In conclusion, the Board finds the weight of the evidence is against finding that the Veteran suffers any facets, residuals, or impairments as a result of his service-connected TBI disability. Accordingly, an initial compensable rating for the Veteran's service-connected TBI disability is denied. As the evidence of record weighs persuasively against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a total disability rating based upon unemployability (TDIU) VA will grant TDIU benefits when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must 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). Upon being denied an initial compensable rating for his service-connected TBI herein, in tandem with his service-connected migraine headaches, the Veteran has a combined disability evaluation of noncompensable from December 17, 2013. Consequently, the Veteran has not satisfied the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for schedular TDIU consideration during the appellate period as he does not have one disability rated at 60 percent or more, or a combined rating of at least 70 percent or more. In exceptional circumstances, where a Veteran does not meet schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on "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 this case, the Veteran has not raised entitlement to an extraschedular TDIU, nor has that issue been reasonably raised by the record. The Board notes that it is only required to address/discuss an extraschedular TDIU if it is "raised by the claimant or reasonably raised from the record." See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019); Robinson v. Peake, 21 Vet. App. 545,553 (2008) (aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2008)). The Veteran's TDIU claim primarily rests upon his increased rating claim for his service-connected TBI disability, in that he alleges his inability to secure or follow a substantially gainful occupation is primarily due to his TBI symptomatology, namely severe memory impairment. See May 2014 Notice of Disagreement. Here, the Board finds that the evidence of record ultimately does not reflect that the Veteran's service-connected disabilities prohibit him from securing or maintaining substantially gainful employment. To that end, the Board notes that the Veteran's major neurocognitive disorder due to his CVA in 2013 renders him totally occupationally and socially impaired. See October 2021 VA examination report. However, this condition cannot serve as the basis for the award of a TDIU, as the most probative evidence of record, namely the November 2021 VA examiner's medical opinion determined that it is less likely than not that the Veteran's TBI is in anyway related to 2013 CVA. Thus, the Board finds that the facts are not sufficient to warrant a TDIU. The Board finds no compelling evidence of record demonstrating that the Veteran's service-connected disabilities are of such a severity or frequency that they prevent him from securing or following all forms of substantially gainful employment. As the evidence of record weighs persuasively against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.