Citation Nr: 1736694	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-32 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI).

2.  Entitlement to a rating in excess of 10 percent for a cervical spine disability.


ATTORNEY FOR THE BOARD

V-N. Pratt, Associate Counsel 


INTRODUCTION

The Veteran served on active duty November 1978 to August 1979.

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

In a January 2016 correspondence, the Veteran withdrew his request for a hearing before the Board.  In March 2016, the Board remanded the matters for further development.


FINDINGS OF FACT

1.  Forward flexion of the Veteran's cervical spine was greater than 30 degrees, combined range of motion was greater than 170 degrees, the Veteran had no incapacitating episodes that had a total duration of at least two weeks but less than four weeks during the past 12 months, and ankylosis was not shown.  

2.  The Veteran's memory impairment warrants a level "2" on the facets of cognitive impairment and other residuals of TBI not otherwise classified, but there is no higher facet level shown.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for a cervical spine disability are not met.  38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2016).

2.  The criteria for a 40 percent rating, but not higher, for TBI are met.  38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.124a, DC 8045 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Ratings

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating applies.  38 C.F.R. § 4.7 (2016).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2016). 

The Veteran's entire history is to be considered when making disability evaluations.  38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Cervical Spine Disability

The Veteran is currently rated at 10 percent for cervical spine disability, effective February 26, 2004, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016).

Spine disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine.  Cervical spine disabilities may be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever of the two methods results in the higher rating.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016).

In this case, the Board will first consider the claim for a higher rating for a cervical spine disability under the General Rating Formula and then, will consider the claim under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Under the General Rating Formula, a 10 percent rating is warranted when the forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine.  A 100 percent rating is warranted for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016).

For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees.  The normal combined range of motion of the cervical spine is 340 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2016). 

A December 2005 Physician's Note shows that the Veteran reported symptoms of neck pain, with an intensity of 7/10, mainly in the am.  The Veteran also reported having stiffness for many years, but at the time, he was not taking any pain medication.  The treatment note shows a limitation of right lateral rotation to 50 degrees in the neck.  An assessment of the Veteran's condition shows neck stiffness from degenerative disc disease/degenerative joint disease.

An April 2007 Primary Care Note shows that the Veteran complained of chronic neck pain of 7/10, without precipitating factors, which was relieved with Ibuprofen, stretching, and hot water.  The primary care note shows that the neck was supple with some limitation on extension.  The primary care note also shows that an X-ray of the neck found mild degenerative disc disease, which was unchanged since December 2005.  The assessment was neck pain from osteoarthritis.

A May 2007 VA examination of the neck shows that the Veteran reported having pain in the neck, which often radiated to the left and right trapezius areas.  At the time, and according to the VA examination report, the Veteran was not using a cane or other assisted ambulatory aids, but he was wearing orthotics in his shoes.  He reported that he was generally able to walk as far as he needed without difficulty.  The Veteran also indicated that he underwent physical therapy, which he did not find too helpful.  He reported that he was able to undertake his normal activities of daily living, such as shopping, showering, and toileting, without too much difficulty.

On physical examination, the VA examiner found that there was normal lordotic curve in the cervical spine, and that there was no significant tenderness in relation to the cervical spine itself.  The VA examination report further found that there was some discomfort to palpation in relation to the upper trapezius, the left slightly more than the right.  The VA examiner also reported that the range of motion was forward flexion to 45 degrees; extension to 40 to 45 degrees, with mild discomfort; left lateral flexion from 0 to 40 degrees, with mild discomfort at the extreme; right lateral flexion from 0 to 45 degrees with no significant discomfort; left lateral rotation from approximately 0 to 70 or 75 degrees; and right lateral rotation from approximately 0 to 80 degrees.  The VA examiner found that there was some crepitation with the movements, and no evidence of muscle spasm or significant guarding.  The VA examiner also found that there were no neurological deficits in the upper extremities, and the motor power was 5/5.  Sensation was grossly intact, and the deep tendon reflexes were within normal limits.  The VA examiner also found that the examination for other functionally limiting factors was negative in that there was no increased pain with three repetitions of movements, no decreased range of motion, no fatigue or lack of endurance, and no incoordination.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The VA examiner diagnosed osteoarthritis with neck pain.

A September 2008 Primary Care Note shows that the Veteran complained of persistent neck pain, at an intensity of 5/10 that started in the morning, and that the pain had worsened the previous the weeks, but calmed down for the previous two days.  He reported elbow pain with no precipitating factor of 4/10.  The treatment note also notes that the range of motion for the neck was mainly limited for extension, and the Veteran indicated that he felt better on forward flexion.

A January 2009 Primary Care Note shows that the Veteran was feeling intermittent neck pain with numbness when sitting in a certain position for a while.  

In January 2010 correspondence, the Veteran asserted that his neck problem had worsened.  He indicated that he had undergone physical therapy, and that his physical therapist gave him some devices for home use that helped with his pain, but that the pain, stiffness, and soreness continued to plague him.

An August 2010 VA examination report shows that the Veteran reported pain in his neck with tilting his head or turning his head from side to side.  The Veteran indicated that the pain was worse in the morning and also late at night.  The Veteran also reported that the pain could last several hours.  He indicated that the pain radiated down the left arm, with some intermittent numbness and tingling in the fingertips.  He reported that he was using Vicodin for neck pain and was not using any steroid injections, nor was he using any assisted devices.  He also reported that he was given a traction unit that he used every night and also a TENS unit that he used twice a week.  The Veteran reported that he was independent with his own personal care, bathing, dressing, and toileting.  He further indicated that his walking tolerance was limited to 30 minutes.  The VA examination report found that there were no incapacitating episodes and no upper extremity weakness.

On examination, the VA examination report shows mild tenderness to palpation over the C4-C5 area.  Forward flexion was to 40 degrees, extension was 30 degrees, right lateral flexion was to 30 degrees, left lateral flexion was to 30 degrees, right rotation was to 60 degrees, and left rotation was to 60 degrees.  The VA examination report contains an impression of degenerative spondylosis of C3-C7 with cervical disc bulging.  

A July 2011 Treatment Note shows that an X-ray of the cervical spine found mild degenerative changes of the cervical spine with no change in the appearance of the cervical spine appreciated when comparison was made to a previous April 2007 MRI.  The treatment note also shows that an MRI of the cervical spine from September 2008 showed moderate central canal stenosis at C3-C4 with some very subtle left sided cord signal changes on the T2 weighted imaging.  At C4-C5, there was mild central canal stenosis and at C5-C6 he had right greater than left neural foraminal narrowing.  The Registered Nurse reported that the Veteran had a chronic cervicalgia, which the nurse did not believe related to the underlying cervical spondylosis, as seen on the MRI.  The nurse did not believe that any surgical intervention of the cervical spine would improve the chronic neck pain.  The nurse did not find him to have evidence of myelopathy or radiculopathy.  

An October 2011 Primary Care Outpatient Note shows that the Veteran complained of increasing neck stiffness with pain on a scale of 6 out of 10, for two weeks.  The Veteran reported that he did not have any injuries two weeks prior.  

An April 2012 Physical Therapy Spinal Evaluation shows a history of chronic neck pain.  Pain was rated at a scale of 3-4/10 at best, and 8/10 at worst.  The examination noted that aggravating factors were uncertain.  Pain intensity, which was dated March 2012, was rated at a scale of 8.  The VA examiner observed that the Veteran had poor sitting posture with rounded shoulders and protracted scapula.  Functional mobility shows fair spontaneous demonstration of proper body mechanics.  Cervical range of motion testing found that limitation of cervical flexion was 50 percent limited, retraction was 25 percent limited, and left rotation was 25 percent limited.  Upper extremity range of motion was within normal limits.  With respect to neurological status, the Veteran denied having dizziness or lightheadedness, but reported having headaches.  An upper limb tension test found that the Veteran reported pain in left side of neck.

A May 2012 Physical Therapy Outpatient Note shows that the Veteran was being seen for chronic neck pain with radicular symptoms into left upper extremity.  At the start of his session, pain was rated at 7/10 and at the end of the session, plain was rated at 1/10.  The outpatient note also shows that his range of motion was limited with left cervical spine rotation of 50 percent and right side bend at 75 percent.  Further, the outpatient note indicated that his functional mobility was limited by neck and left upper extremity pain.

A November 2013 VA examination reported that neck pain had greatly increased in frequency and intensity over the previous year.  The Veteran indicated that he had also developed pain in the right upper shoulder that radiated to the elbow that was severe in nature.  The Veteran stated that there was also a dull ache present in the upper arm.  He reported numbness and some slight degree of weakness of the right upper extremity, which had also progressed, such that, for example, he dropped a coffee cup when holding it on occasion,.  The Veteran reported having flare-ups that impacted the function of the cervical spine.  He described the impact of the flare-ups as having pain in right upper extremity that increased with neck range of motion,, especially rotation; and was also worse with lifting or carrying items.  When flare-ups occurred, he dropped items held with the right hand, like coffee cups or pens.

On range of motion testing, forward flexion ended at 35 degrees, and objective evidence of painful motion began at 35 degrees; extension ended at 30 degrees, and objective evidence of painful motion began at 30 degrees; right lateral flexion ended at 25 degrees, and objective evidence of painful motion began at 25 degrees; left lateral flexion ended at 25 degrees, and objective evidence of painful motion began at 25 degrees; right lateral rotation ended at 60 degrees, and objective evidence of painful motion began at 60 degrees; left lateral rotation ended at 50 degrees, and objective evidence of painful motion began at 50 degrees.  The VA examination report shows that the Veteran was able to perform repetitive-use testing with three repetitions, and that the Veteran had additional limitation of range of motion of the cervical spine after repetitive-use testing.

The VA examination also shows that the Veteran had functional loss or functional impairment of the cervical spine.  The contributing factors were less movement than normal, weakened movement, excess fatigability, pain on movement, and radicular pain of the right upper extremity with range of motion testing.  The VA examination report also shows that the Veteran had localized tenderness or pain to palpation for joints and soft tissue of the cervical spine.  The Veteran had guarding or muscle spasm of the cervical spine.  However, guarding or muscle spasm, though present, did not result in abnormal gait or spinal contour.  The VA examination report also shows that the Veteran had pain or other signs or symptoms due to radiculopathy.  The right upper extremity had symptoms of constant pain, which was often excruciating, that were moderate, and none in the left upper extremity.  The Veteran reported intermittent pain, which was usually dull, in the left upper extremity.

While the VA examination report shows that the Veteran had intervertebral disc syndrome (IVDS) and incapacitating episodes, the report nonetheless indicated that he did not have any incapacitating episodes over the prior 12 months.  The VA examiner opined that there was more likely than not that a significant discernable limitation that occurred of the neck and right upper extremity due to functional disability during flare-ups or when the joint was used repeatedly over a period of time from pain, weakness, fatigability, or lack of coordination, as noted with repetition of extension and rotation three times during the examination.  The VA examiner also stated that it was not feasible to predict in terms of degrees any additional range of motion loss or functional limitation due to pain on use or during flare-ups as any prediction would be mere speculation.

A May 2014 VA examination of the cervical spine shows a diagnosis of cervical spondylosis with myelopathy and degenerative disc disease of the cervical spine.  The Veteran indicated that since his last rating evaluation, he had more pain and that had affected his job and activities of daily living.  He stated that he paid close attention, as he has tendency to drop objects.  He also stated that he had difficulty driving when he turned his neck, and that heavy lifting was difficult.  The VA examination report shows associated subjective weakness.  The Veteran indicated that he hired someone to move his equipment.  He also reported flare-ups that impacted the function of the cervical spine.

On range of motion testing, forward flexion ended at 40 degrees, with normal endpoint at 45 degrees, and painful motion began at 40 degrees; extension ended at 30 degrees, with normal endpoint at 45 degrees, objective evidence of painful motion began at 30 degrees; right lateral flexion ended at 40 degrees, with normal endpoint at 45 degrees, objective evidence of painful motion began at 40 degrees; left lateral flexion ended at 45 degrees or greater, with normal endpoint ending at 45 degrees, objective evidence of painful motion began at 45 degrees or greater; right lateral rotation ended at 50 degrees, with normal endpoint at 80 degrees, objective evidence of painful motion began at 50 degrees; lateral rotation ended at 50 degrees, with normal endpoint at 80 degrees, and objective evidence of painful motion began at 50 degrees.  The Veteran was able to perform repetitive-use testing with three repetitions.  Furthermore, the Veteran had additional limitation in range of motion of the cervical spine following repetitive-use testing, and he had functional loss or functional impairment of the cervical spine.  Contributing factors to the Veteran's functional loss, functional impairment, or additional limitation of range of motion of the cervical spine after repetitive use, included less movement than normal, weakened movement, and pain on movement.  The Veteran had localized tenderness or pain to palpation for joints and soft tissue of the cervical spine, and muscle spasms of the cervical spine that did not result in abnormal gait or abnormal spine contour.  The Veteran also had guarding of the cervical spine that did not result in abnormal gait or abnormal spine contour.  The VA examination report shows that the Veteran had intervertebral disc syndrome of the cervical spine, but that he did not have any incapacitating episodes over the prior 12 months.

A June 2016 VA examination of the cervical spine shows that the Veteran stated that his pain had been getting worse since his last rating examination in May 2014.  He indicated that he now had radicular symptoms on the left and the right.  Additionally, the Veteran reported that pain medications, including Norco and muscle relaxant, no longer relieved the pain.  He also reported having flare-ups of the cervical spine, and that he was having functional loss or functional impairment.  He indicated that he had to stop what he was doing when he had neck pain and that it interfered with all activities. 

On range of motion testing, forward flexion was 0 to 40 degrees; extension was 0 to 30 degrees; right lateral flexion was 0 to 40 degrees; left lateral flexion was 0 to 45 degrees; right lateral rotation was 0 to 50 degrees; and left lateral rotation was 0 to 50 degrees.  Pain and loss of motion was reported as functional loss.  Additionally, the ranges of motion that exhibited pain were forward flexion, right lateral flexion, and left lateral flexion.  The VA examination report also notes that there was evidence of pain on weight bearing; and objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue of the cervical spine.  The Veteran was able to perform repetitive use testing with at least three repetitions.  The VA examination report further shows that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time.  Additionally, pain, weakness, fatigability, or incoordination also significantly limited functional ability with flare-ups.  The examination report also shows that the Veteran had intervertebral disc syndrome of the cervical spine, but that he had not had any episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest, as prescribed by and treated by a physician in the prior 12 months.

An increased rating of 20 percent is warranted when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the cervical spine is not greater than 170 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  However, a review of the evidence of record indicates that a rating in excess of 10 percent is not supported.  Based on the rating criteria, the Veteran's forward flexion of the cervical spine consistently fell between 40 and 45 degrees, and his combined range of motion consistently exceeded 170 degrees during the entire appellate period, even when considering additional functional loss due to pain and other factors.  Furthermore, although there was evidence of muscle spasm and guarding, this was not severe enough to result in an abnormal gait or abnormal spinal contour.  Finally, the Veteran manifested no evidence of reversed lordosis or abnormal kyphosis.  Therefore, his cervical spine disability more nearly approximately a rating evaluation of 10 percent.

Alternatively, the Board has considered whether a higher rating for the cervical spine disability, based on incapacitating episodes, is available under Diagnostic Code 5243.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent rating for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016).  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2016).  

Thus, since the Veteran is already rated 10 percent, he would have to meet the criteria for 20 percent to qualify for a higher rating based on incapacitating episodes.  However, in this case, there is no evidence of any incapacitating episodes that had a total duration of at least two weeks but less than four weeks during any 12 month period.  Therefore, the Board finds that a higher rating based on incapacitating episodes is not warranted.  Accordingly, the Veteran is properly rated based on pain and limitation of motion, and a rating in excess of 10 percent is not warranted.  38 C.F.R. § 4.71a (2016).

Furthermore, the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code.  38 C.F.R. § 4.71(a), General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2016).  The Board has also considered whether a separate rating for neurological findings is warranted.  In this case, while evidence of record indicates that a neurological disability has been diagnosed, the Veteran has already been service-connected for those disabilities.  Specifically, a September 2016 rating decision established service connection for radiculopathy of the right and left upper extremities.  

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for a cervical spine disability.  Therefore, the claim must be denied.  38 U.S.C.A. § 5107 (West 2014).

TBI

TBI is rated according to Diagnostic Code 8045, which states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical.  Each of the 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 those 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.  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, Diagnostic Code 8045 (2016).  

Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction.  Evaluate subjective symptoms that are residuals of a 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, 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, Diagnostic Code 8045 (2016).  

Evaluate emotional/behavioral dysfunction 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, 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, Diagnostic Code 8045 (2016).  

Evaluate physical (including neurological) dysfunction 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.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (2016).  

The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI.  For residuals not listed 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.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (2016).  

Consider the 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.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (2016).  

The Rating Schedule provides further for the Evaluation of Cognitive Impairment and Subjective Symptoms in a 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 fifth 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.  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 evaluation based on the level of the highest facet with a 0 receiving a 0 percent rating, a 1 receiving a 10 percent rating, a 2 receiving a 40 percent rating, and a 3 receiving a 70 percent rating.  A 70 percent rating is assigned if 3 is the highest level of evaluation for any facet.

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 or neurologic or other physical disorder that can be separately evaluated under another DC.  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.  38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1) (2016).  

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.  38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (2) (2016).  

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.  These 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.  38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (3) (2016).  

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.  This classification does not affect the rating assigned under Diagnostic Code 8045.  38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (4) (2016).  

A Veteran whose residuals of a TBI which are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review.  VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under Diagnostic Code 8045.  A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008.  For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114, if applicable.  38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (5) (2016).  

The Veteran is currently rated 10 percent for TBI, effective June 5, 2010.  The Veteran has already been rated under separate Diagnostic Code for service-connected headaches and PTSD disabilities.  Since those two service-connected disabilities encompass the emotional/behavioral and physical areas of dysfunction, the cognitive area is the only of the three areas of dysfunction that is subject to an increased rating consideration in this case.

In a November 2013 VA examination for TBI, an assessment of the 10 important facets of TBI-related cognitive impairment and subjective symptoms of TBI shows that the facet of "memory, attention, concentration and executive functions" found objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.  The VA examiner noted that the Veteran had memory problems in the last few years.  He needed written reminders for all appointments and daily tasks.  He was no longer able to multi-task.  He misplaced items.  He had some trouble with long-term memory, and that had worsened in the previous few years.  The Veteran's mini-mental state examination score was 26/30.  The facet of "judgment" found mildly impaired judgment, specifically, for complex or unfamiliar decisions, the evaluation found that he was unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.  That assessment further indicated that the Veteran avoided social interactions, as easily irritated by a stranger, and that he avoids grocery shopping, if possible.  The facet of "social interaction" found that social interaction was occasionally inappropriate, and reiterated that the Veteran avoided social interactions, and that he was easily irritated by a stranger.  The facet of "orientation" found that the Veteran was occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation and that he was occasionally confused about dates.  The facet of "motor activity" found that area of cognitive function was normal.  The facet of "visual spatial orientation" found being mildly impairment, also indicating that the Veteran occasionally became lost in unfamiliar surroundings, and had difficulty reading maps or following directions, but is able to use assisted devices, such as GPS.  That assessment further indicated that he was not good at navigation and that he could use GPS most of the time.  The facet of "subjective symptoms" found that he had three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living; or work, family or other close relationships.  That assessment further found that he had daily insomnia, frequent severe headaches, and anxiety that mildly interfered with work and activities of daily living at times.  

The facet of "neurobehavioral effects" found that one or more neurobehavioral effects occasionally interfered with workplace interaction, social interaction, or both, but did not preclude them.  That assessment further indicated that he was irritable, impulsive, has lack of motivation, and was unpredictable to the point that it interfered with work and activities of daily living, but did not preclude them.  The facet of "communication" found comprehension or expression, or both, of either spoken language or written language that was occasionally impaired, and that the Veteran could communicate complex ideas.  That assessment further found that the Veteran had a harder time comprehending complex ideas, that his friend had to break down the issues and he still became frustrated and gave up.  The facet of "consciousness" found that area of cognitive function was normal.  

In a December 2015 VA examination for posttraumatic stress disorder (PTSD), the VA examiner reported that the symptoms of TBI were distinguishable from the symptoms of PTSD.  The VA examiner also reported that the alterations in cognition and mood were attributable to TBI and PTSD (overlapping), with arousal and reactivity symptoms being attributable to TBI and PTSD (also overlapping).  The VA examiner best summarized the Veteran's level of occupational and social impairment with regard to his mental diagnoses, including TBI, as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood.  The VA examiner reported that the Veteran's TBI sequelae were likely to make mental health treatment ineffective, as had been the case previously, and that his symptoms were likely to continue to worsen.  Associated symptoms of TBI that were identified by the VA examiner, while identifying all of the symptoms that applied to the Veteran's mental diagnoses, included and were not limited to, anxiety; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory; circumlocutory speech; speech intermittently illogical, obscure or irrelevant; impaired judgment, and gross impairment in thought processes or communication; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence.

In a June 2016 VA examination for TBI, an assessment of cognitive impairment and other residuals of TBI shows the following for the 10 important TBI facets:  a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, attention, concentration, or executive functions, but without objective evidence on testing); judgment was normal; social interaction was routinely appropriate; orientation-always oriented to person, time, place, and situation; motor activity was normal; visual spatial orientation was normal; subjective symptoms did not interfere with work, instrumental activities of daily living, or work, family or other close relationships, in which examples of this included mild or occasional headaches and mild anxiety; one or more neurobehavioral effects that did not interfere with workplace interaction or social interaction, including irritability (e.g. gets short with family and friends), apathy (e.g. hard to get up and going in the morning), moodiness (e.g. changes mood quickly, happy to anger, starts crying for no reason); communication-able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language; and consciousness was normal.

A June 2016 VA examination for PTSD shows that the Veteran had various mental diagnoses, including TBI, PTSD, schizoaffective disorder, and polysubstance use disorder, and the VA examiner indicated that it was possible to differentiate what symptoms were attributable to each of the diagnoses.  In particular, the VA examiner indicated that the Veteran's symptoms of memory, concentration, problems being alert, issues with impulse control, and problems with executive function were all attributable to TBI.  The VA examiner further indicated that the Veteran's level of occupational and social impairment with regard to his mental diagnoses could best be summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.

The VA examiner also indicated that it was possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder, and specifically indicated that the Veteran manifested moderate occupational and social impairment that was caused by TBI.  Associated symptoms of TBI that were identified by the VA examiner, while identifying all of the symptoms that applied to the Veteran's mental diagnoses, included and were not limited to anxiety; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, such as retention of only highly learned material; circumlocutory speech; speech which was intermittently illogical, obscure, or irrelevant; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence.

A September 2016 VA examination for PTSD indicates that it is possible to differentiate what symptoms were attributable to TBI, indicating that the Veteran's symptoms of headaches and irritability were attributable to TBI, but that his irritability was also due to PTSD.  The VA examiner best summarized the Veteran's level of occupational and social impairment with regard to all of his metal diagnoses, as a total occupation and social impairment.  Associated symptoms of TBI that were identified by the VA examiner, while identifying all of the symptoms that applied to the Veteran's mental diagnoses, included and were not limited to anxiety; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

While the evidence of record shows no specific treatment for TBI, VA treatment records from the appellate period consistently show that the Veteran has a memory impairment with no gross deficits.  Other symptoms of TBI that were of record in his VA treatment records included headaches (neurologic symptoms), anxiety, and a functional impairment of social interactions.

After a review of all evidence of record, the Board finds that the Veteran's service-connected TBI disability more nearly approximates the criteria for a 40 percent rating.  In the November 2013 TBI VA examination, a level of 2 for the "memory" facet was the highest level of the 10 important facets.  The Board acknowledges that in March 2016, this case was remanded to obtain a medical opinion on distinguishing the symptoms of PTSD from the symptoms of TBI.  The medical evidence now shows varying medical opinions from VA examiners as to whether the symptoms of both disabilities could be distinguishable.  A September 2016 rating decision granted a rating of 100 percent for PTSD and in that decision, it appears that memory impairment was not one of the factors that were considered in assigning that increased rating.  Therefore, cognitive impairment of the memory can be rated under TBI at 40 percent, and that does not violate the rules against pyramiding.  38 C.F.R. § 4.14 (2016).

The Board finds that a rating in excess of 40 percent for TBI is not warranted because the evidence does not show that the Veteran warrants a level 3 or higher for any of the facets for rating TBI.  The evidence does not show for only TBI symptomatology that there is objective evidence on testing of moderate or worse impairment of memory, attention, concentration, or executive functions; moderately severe or worse impairment of judgment; social interaction which was inappropriate all of the time; motor activity that was moderately or worse decreased due to apraxia; moderately severe or worse impairment of visual/spatial orientation; one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for the safety or self or others; an inability to communicate by spoken or written language, or both; or a persistently altered state of consciousness, such as a vegetative state or coma. 

Accordingly, the Board finds that the evidence supports the assignment of a 40 percent rating for TBI.  However, as the preponderance of the evidence is against the assignment of a rating greater than 40 percent, the claim for any higher rating must be denied.  38 U.S.C.A. § 5107 (West 2014).


ORDER

Entitlement to a rating of 40 percent, but not higher, for TBI is granted.

Entitlement to a rating in excess of 10 percent for cervical spine disability is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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