Citation Nr: 1754214	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-24 964	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to an increased rating for traumatic brain injury (TBI), currently evaluated as 40 percent disabling.


REPRESENTATION

Appellant represented by:	James G. Fausone, Attorney


ATTORNEY FOR THE BOARD

K. Osegueda, Counsel


INTRODUCTION

The Veteran served on active duty from June 1978 to June 1981.  He also had service in the Utah Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  In that rating decision, the RO increased the evaluation for the service-connected TBI from 10 to 40 percent.  The Veteran appealed the rating.

In July 2014, the RO granted service connection for a persistent depressive disorder and assigned a 70 percent evaluation.  In the rating decision, the RO explained that disability and disease causing functional impairment may overlap to a great extent and that the separate evaluation of disease and disability which cause the same functional impairment is to be avoided.  In instances such as this, ratings are based on the overall functional impairment per VA regulation. See 38 C.F.R. § 4.14 (avoidance of pyramiding); see also 38 C.F.R. § 4.115a (only the predominant area of dysfunction is considered for rating purposes).  The RO noted that all of the Veteran's current behavioral and emotional symptoms have been attributed to his persistent depressive disorder and not his TBI.  Therefore, his depressive disorder was separately evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130.  The Board later denied entitlement to an increased evaluation for persistent depressive disorder in a February 2017 decision, and the issue is not on appeal at this time.

In a July 2015 decision, the Board denied entitlement to an increased rating for TBI.  The Veteran appealed the Board's July 2015 decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2016, pursuant to a Joint Motion for Remand (Joint Motion) filed by the Veteran's attorney and VA's Office of General Counsel, representing the Secretary of VA, the Court vacated the Board's July 2015 decision and remanded the case for readjudication in compliance with the directives specified.  

Thereafter, in August 2016 and February 2017, the Board remanded the case for additional development.  The case has since been returned to the Board for appellate review.

This appeal was processed using the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1.  A "3" is assigned as the highest level of the facet pertaining to memory, attention, concentration, and executive functions, as objective evidence on testing has shown moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment.  

2.  The evidence does not warrant a "total" evaluation to be assigned for one or more facets.


CONCLUSION OF LAW

The criteria for an increased rating of 70 percent, but no higher, for TBI have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8045 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating 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 military 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.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27.  In this case, as explained below, a uniform evaluation is warranted.

In this case, the Veteran's TBI is currently assigned a 40 percent disability evaluation pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045. 

Diagnostic Code 8045 provides an evaluation for three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: Cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045.

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 to be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id.  

Emotional/behavioral dysfunction is to be 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, the emotional/behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id.  

Subjective symptoms may be the only residual of traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction.  Subjective symptoms that are residuals of traumatic brain injury are evaluated, 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 Traumatic Brain Injury Not Otherwise Classified."  However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headaches or Meniere's disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" table.

Physical (including neurological) dysfunction is to 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. Id.  

The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI.  For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code.  Each condition should be evaluated 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. Id.  

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. should also be considered. Id.  

Under Diagnostic Code 8045, the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of traumatic brain injury 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."  A 100 percent evaluation will be assigned if "total" is the level of evaluation for one or more facets.  If no facet is evaluated at "total," the overall evaluation is 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, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. Id.

For the facet memory, attention, concentration, executive functions, a "0" level of impairment is assigned with no complaints of impairment.  A "1" level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing.  A "2" level is assigned with objective evidence on testing of mild impairment.  A "3" level is assigned with objective evidence on testing of moderate impairment.  A "total" level is assigned with objective evidence on testing of severe impairment.

For the facet judgment, a "0" level of impairment is assigned for normal judgment.  A "1" level is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.  A "2" level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions.  A "3" level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision.  A "total" level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities.

For the facet social interaction, a "0" level of impairment is assigned when social interaction is routinely appropriate.  A "1" level is assigned when social interaction is occasionally inappropriate.  A "2" level is assigned when social interaction is frequently inappropriate.  A "3" level of impairment is assigned when social interaction is inappropriate most or all of the time.

For the facet orientation, a "0" level of impairment is assigned when always oriented to person, time, place and situation.  A "1" level is assigned when occasionally disoriented to one of the four aspects of orientation.  A "2" level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation.  A "3" level is assigned when often disoriented to two or more of the four aspects of orientation.  A "total" level is assigned when constantly disoriented to two or more of the four aspects of orientation.

For the facet motor activity, (with intact motor and sensory system) a "0" level of impairment is assigned for normal motor activity.  A "1" level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function).  A "2" level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia.  A "3" level is assigned for motor activity moderately decreased due to apraxia.  A "total" level is assigned for motor activity severely decreased due to apraxia.

For the facet visual spatial orientation, a "0" level of impairment is assigned when normal.  A "1" level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as global positioning system (GPS).  A "2" level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS.  A "3" level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS.  A "total" level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment.

For the facet subjective symptoms, a "0" level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety).  A "1" level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light).  A "2" level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days).

For the facet neurobehavioral effects, a "0" level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction.  Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability.  Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects.  A "1" level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them.  A "2" level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them.  A "3" level is assigned with 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 safety of self or others. 

For the facet communication, a "0" level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language.  A "1" level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas.  A "2" level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas.  A "3" level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs.  A "total" level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs.

For the facet consciousness, a "total" level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma.

However, not every facet has every level of severity.  The "subjective symptoms" facet, for example, provides for an impairment level of 0, 1, or 2, which corresponds to 0 percent; 10 percent; and 40 percent, respectively.

Notes are included with Diagnostic Code 8045.  Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of Traumatic Brain Injury Not Otherwise Classified" with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, more than one evaluation is not to be assigned based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned.  However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. 

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.  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.

Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury 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.

Historically, the Board notes that the Veteran suffered a head injury in a parachute accident in January 1996.  He was service-connected for post-concussion syndrome with headache and mild diminished performance on memory tasks.  He was later diagnosed with TBI in lieu of the older diagnosis. See November 2011 VA examination report.

In May 2011 VA mental health treatment records, the Veteran stated that he often forgot to take his medication and that he made mental mistakes.  He related that he was in a car accident in April when he rear-ended another vehicle and totaled his own vehicle.  He was also cited for driving on a denied license.  He stated that his license was denied because his physician's office failed to fax a form that he completed annually to maintain his license due to his brain injury.  The Veteran indicated that the traffic judge sentenced him to five days in jail and then suspended the sentence.  He related that he was very angry and went to his doctor's office to confront the secretary for not faxing the form.  He stated that she had security remove him for threatening her.  On examination, the Veteran was oriented to person, time, place, and situation.  His form of thought was linear, goal-directed, and tangential at times.  His judgment was intact, and the clinician noted that the Veteran was capable of managing his daily living activities.  The Veteran reported that his memory impairment included difficulty recalling items on a daily basis.  He indicated that he was late to or missed appointments and that he does not remember what his wife tells him. 

In a June 2011 VA mental health medication management note, the Veteran stated that he was unable to remember things that he used to remember and that he was unable to perform things like he used to because he was unable to think of how he used to perform familiar chores.  He related that he had increased agitation and depression with medication non-compliance due to memory difficulties.  He stated that he remembered things with emotional context, but not out of context.  He reported that he would start to leave soccer games that he was coaching at half-time because he believed that it was the end of the game.  He reported having difficulty remembering places that he had been, and he stated that, if the place felt right, he may have been there before.  For instance, he was able to remember visiting the Vatican, the statue of David, and one place in Vienna following a month long trip to Europe with his wife.  He stated that he had pictures of himself there, but he was unable to remember most of the vacation.  He stated that he also forgot fairly familiar places.  The Veteran further reported that he could lose his thought mid-sentence.  The clinician noted that the Veteran had to say "pentagon" before he could draw it, but then he inappropriately connected the command "close your eyes" to the wrong test.  A mental status examination revealed cooperative, socially appropriate behavior.  The Veteran demonstrated baseline psychomotor activity and gait with no tremor.  He spoke with normal rate, prosody, and volume, and he was alert and oriented to person, place, time, and situation.  He demonstrated baseline and adequate concentration.  His memory was intact and baseline.  His judgment was marginal to fair.  The clinician noted moderate to severe memory deficits that exacerbated noncompliance with medications.  The clinician found that the Veteran had a basic fund of knowledge, but noted that he appeared to lose his temporal place versus physical place.  The clinician indicated that the Veteran would appear to forget something and then recall the data at an inappropriate time, which would confuse him further.

In an August 2011 VA treatment note, the physician noted that the Veteran's behavior was cooperative, his motor functions were baseline, and he demonstrated baseline and marginally adequate concentration.  His memory was marginal, his judgment was fair, and his speech was at a normal rate.

During a November 2011 VA TBI examination, the examiner noted that the Veteran's head injury had stabilized.  The Veteran also reported that his headaches had decreased in severity over time.  He described having several mild to moderate headaches each month that he treated with Tylenol and approximately two major headaches each month that lasted for one day and required Motrin for treatment.  During major headaches, he stated that he could experience nausea, photophobia, and phonophobia.  He denied having any incapacitating headaches.  The Veteran also reported having poor memory, especially short-term.  He stated that he forgot recent conversations, appointments, and obligations.  He also misplaced items, such as his keys, wallet, and credit cards.  The Veteran stated that he easily forgot material that he just read and that he was able to watch old movies anew due to a lack of memory of its content.  He also described some absent-minded behavior, such as frequently forgetting to turn off a hard hose, leaving water running in the bathroom, and forgetting to turn off the stove.  The Veteran further described some problems with attention and concentration, including being easily distracted from a task and an inability to multi-task.  The examiner did not find the Veteran to have clinically significant problems with executive functions, such as planning, organizing, prioritizing, self-monitoring, problem solving, or setting goals.  The examiner noted that the Veteran processed information at a normal speed and that his judgment and decision-making were intact.  The Veteran stated that he felt that his cognitive problems had persisted and remained stable over time.  The examiner did not find that the Veteran had any clinically significant psychiatric symptoms or neurobehavioral symptoms due to the direct effects of his head injury.  In addition, the examiner did not find that the Veteran had any clinically significant findings of seizures, dizziness, hypersensitivity to light or sound, sleep disturbance, vision problems, cranial nerve dysfunction, decreased sense of taste or smell, hearing loss, tinnitus, speech or swallowing difficulties, weakness or paralysis, numbness or paresthesias or other sensory changes, relevant pain, bladder problems, bowel problems, erectile dysfunction, difficulty walking or mobility problems, balance or coordination problems, fatigue, malaise, autonomic dysfunction, or endocrine dysfunction.  The Veteran stated that he did not work.  He related that he was receiving a stipend to coach high school soccer until the past spring, but he had to stop coaching due to overwhelming stress in his life related to his involvement in a motor vehicle accident, legal problems, and reactionary depression.  He also indicated that he stopped attending art school in May 2011 because it was too demanding in light of his other troubles.

On physical examination, the examiner noted that the Veteran was in no acute distress, and he was alert and oriented to person, place, and time.  He had no aphasia.  A mental status examination was normal.  An examination of the cranial nerves showed that the Veteran had the ability to smell; his pupils were equal, round, and reactive to light; extraocular movements were intact; unremarkable pinprick bilaterally; symmetric face; hearing was grossly intact; symmetric evaluation of the palate; intact trapezius function; midline tongue protrusion; and intact visual fields to confrontation bilaterally.  A motor examination showed no drift; full strength bilaterally for upper and lower extremities; normal muscle tone; no tremor; and no apraxia.  His reflexes were 2+ bilaterally for brachioradialis, biceps, triceps, patella, and Achilles.  A sensory examination showed unremarkable pinprick findings in both arms and legs; symmetric vibration; and intact light touch.  Coordination was normal.  The Veteran demonstrated a normal, tandem gait with no neurological gait deficit.  

The examiner noted that the Veteran had objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.  The examiner indicated that the Veteran's judgment was normal; his social interaction was routinely appropriate; he was always oriented to person, time, place, and situation; his motor activity was normal; and his visual spatial orientation was normal.  The examiner noted that the Veteran had subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships.  The examiner stated that there were no neurobehavioral effects from the TBI.  The examiner also indicated that the Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language.  The examiner further noted that the Veteran's consciousness was normal and that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI, such as migraine headaches or Meniere's disease.  The examiner diagnosed the Veteran with a TBI.  The examiner noted that the facet for memory/attention/concentration/executive functions is graded appropriately for the Veteran's level of disability from cognitive symptoms, and that the subjective facet is graded appropriately for his level of disability from headaches.  The examiner further noted that any emotional or behavioral features in the Veteran were related to primary psychiatric conditions and were not related to the TBI.  

In a November 2011 statement, the Veteran's daughter reported that the Veteran was depressed and agitated and that his personality changed after his TBI.  She indicated that he hoarded items due to damage to his short-term memory because he would forget that he purchased items and would purchase the item repeatedly.  She also noted that he lacked attention; he was slow to process information; and he had fatigue, irritability, and short-term memory loss.  

In a November 2011 statement, the Veteran's wife stated that the Veteran struggled with memory issues on a daily basis.  She noted that he left the water on outside of the house and flooded the yard on numerous occasions; left the stovetop on; forgot to put the garbage out every week; left her at a shopping mall; lost his wallet countless times; continually leaves his credit card at the store; and once left the water in the tub running until it almost flooded.  She reported that he suffered from headaches that could be debilitating.  She also stated that the Veteran bought things that he had previously purchased, such as gifts.  She related that he was unable to keep track of dates or times, he had difficulty completing paperwork, and he had trouble getting to appointments.  She stated that the Veteran lost his job with the postal service due to his inability to perform the mental and physical tasks for the job.  She noted that he was unable to remember numbers, logistics, and routine facts.

In a November 2011 statement, the Veteran's daughter stated that he commonly forgot to pick her up from school.  She indicated that he was frustrated and short-tempered after returning home from running errands.  She also reported that he was unable to understand, recognize, or process the words that people were saying despite seeing their mouths moving.  His daughter further indicated that he was unable to remember where he put money or whether he had spent money.  She stated that the Veteran's office was lined with lists, notes, and reminders with dates to pay bills and passwords.  She also noted that he hoarded items because he was unable to remember his previous purchases.  

In a November 2011 statement, the Veteran's son indicated that the Veteran was irritable, frustrated, and absent-minded.  He reported that the Veteran routinely forgot to pick him up from school.  He also related that the Veteran bought copies of DVDs at the store and that he returned so many DVDs that he was banned from returns to the store for one year.  He further indicated that he performed the Veteran's usual tasks when he became depressed, such as mowing the lawn, shoveling snow, cleaning the garage, and general maintenance around the house.  

In a November 2011 statement, the Veteran's daughter reported that she lived at home with the Veteran and that she witnessed the Veteran's memory loss every day.  She stated that he was unable to remember where he put things after he cleaned, he became frantic and desperate because he was unable to find his wallet or keys, he walked around the house disoriented because he was unable to remember what he doing, and he was unable to plan and schedule.  

In a December 2011 statement, the Veteran reported that he had a significant decrease in the degree and frequency of dizziness spells, an increase in ability to cope with stress, and constant vigilance to control his depression since his January 1996 head trauma.  He indicated that the effects of his TBI were severe and that he was unemployable at a level that was comparable to his pre-injury abilities.  He also related that he had difficulty with memory.  In this regard, the Veteran stated that he had forgotten to submit an annual medical statement from his physician for his driver's license renewal and that he was driving without a license when he was involved in a motor vehicle accident six months earlier.  He related that he was sentenced to five days in jail for the infraction.  He indicated that he was so upset by the sentence that he went to his physician and was taken out of the hospital by security.  The Veteran stated that the episode was so upsetting that he sought mental health treatment and stopped leaving his home.  Specifically, he stated that he "quit" everything outside the boundaries of his home that caused him any level of stress, including private art lessons, coaching soccer, extensive driving, and charitable service.  He also described forgetting which half of a soccer game that his team was playing, forgetting that he changed the times of soccer practices, forgetting where he dropped his wife and daughter off, not remembering the places that he visited on a trip to Europe with his wife, and not remembering that he carried a notebook or planner with him to write things down.  The Veteran indicated that his cell phone works well as a reminder when he remembers to put events into the calendar and charges the phone.  

During a June 2014 VA examination, the Veteran described having continuous difficulties with cognitive impairment and headaches.  The examiner noted that the Veteran also described having depressive symptomatology; however, the examiner stated that the symptoms were better accounted by a separate diagnosis of persistent depressive disorder.  The examiner noted that there were no behavioral disturbances attributable to TBI; no cranial nerves affected by TBI; no motor functions affected by TBI; no pathological reflexes attributable to TBI; no incoordination in the performance of complex movements attributable to TBI; no impairment of gait attributable to TBI; no difficulty or inability to perform motor action or learned movement attributable to TBI; no sensory modalities affected by TBI; and no cognitive, speech, or language impairment attributable to TBI.  A mental status examination showed that there was no affective disturbance attributable to TBI; no thought form affected by TBI; no thought content affected by TBI; no perceptual disturbance attributable to TBI; no insight affected by TBI; no judgment affected by TBI; no impulses affected by TBI; no acute risk to the safety of self or others due to TBI; and no decision making capacity to manage finances affected by TBI.  The Veteran's judgment was normal; his social interaction was routinely appropriate; he was always oriented to person, time, place, and situation; and his motor activity and visual spatial orientation were normal.  He had no neurobehavioral effects.  He was able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language.  His consciousness was normal.  The examiner noted that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI, such as migraine headaches or Meniere's disease.  

The VA examiner noted that the Veteran complained of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing.  The Veteran reported that he had continued cognitive impairment related to TBI.  He stated that he had difficulty concentrating and that he was easily distracted by external stimuli.  He indicated that he easily forgot dates, appointments, conversations, and whether he took his medications, and he related that he went to the store and bought the same movies three times and that he read the same books and watched the same movies several times.  The Veteran also reported that he had difficulty organizing, sequencing, and self-monitoring and that he used his cell phone for alerts and reminders when he remembered to input the information into his phone.  He indicated that he simplified things to carry out his usual daily functions.  He also stated that his symptoms have remained essentially unchanged over time.  The Veteran endorsed three or more subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family, or other close relationships.  He further described having chronic headaches with a fluctuating course.  He noted that he had excruciating headaches with increased sensitivity to light and sound that required him to rest for three hours approximately two to three times per week.  He stated that he took over-the-counter Excedrin Migraine to treat his headaches, and he denied any incapacitation from the headaches.  

The VA examiner reported that the Veteran's neurologic, mental status, and cognitive examinations were found to be in the normal range.  The examiner stated that the Veteran's TBI had stabilized.  He noted that the Veteran continued to have headaches and cognitive impairment, but he was not found to have any other disability attributed to TBI.  

In a February 2015 private medical opinion, a neuropsychologist noted that he had reviewed extensive documentation provided by the Veteran since he had first evaluated him in 1998.  The neuropsychologist noted that his assessment in 1998 was that the Veteran had sustained a mild TBI with the development of post-concussive syndrome.  He noted that, while the majority of patients who sustain such injuries fully recover, some develop chronic problems.  In his opinion, the Veteran had developed chronic problems, such as a mixture of continuing problems involving physical (headache, fatigue, etc.), cognitive (attention/concentration, short-term memory, etc.), and neuropsychiatric (depression, anxiety, poor frustration tolerance, etc.) symptoms.  

Specifically, the neuropsychologist noted that the 1998 testing showed that the Veteran had moderate impairment of attention, concentration, and/or executive functions which resulted in moderate, and on occasion, severe functional impairment.  He indicated that the Veteran reported having severe memory impairment.  He also stated that the Veteran's test results were consistent with moderately impaired judgment for complex or unfamiliar decisions where he was almost always unable to identify, and/or understand, and/or weigh the alternatives.  However, the Veteran had little or no difficulty with simple decisions.  The neuropsychologist stated that deficits with short-term and working memory were observed when he evaluated the Veteran in 1998.  He noted that the Veteran reported that following verbal directions was a challenge because of memory and attention/concentration problems.  The Veteran also indicated that he got lost in unfamiliar settings and that he less frequently became lost in familiar surroundings.  He stated that he was able to operate GPS devices.  The Veteran also reported that he was disoriented to elapsed time and lacked familiarity with places.  He indicated that he knew the means that he got to a place, but he could not recall the route.  He was fully aware of the present time by reading a clock, his specific location, and his purpose for being in that location.  The neuropsychologist noted that the Veteran claimed to have intermittent dizziness and daily, or nearly daily, headaches that ranged from mild (easily treatable) to severe (incapacitating, migraine-like).  He related that he had severe headaches two to four times per month with photo- and phonophobia and nausea.  He stated that these headaches were usually untreatable without going to bed.  He also complained of tinnitus during his 1998 Medical Evaluation Board (MEB), and he indicated that it continued to the present day.  He also reported having headaches, memory problems, and behavioral effects that adversely affected his social interactions and instrumental activities of daily living.  Specifically, the Veteran reported the following typical problems that manifested due to his memory loss: forgetting appointments and social functions; inability to operate devices with manual off requirements, such as stoves, ovens, vehicles, bath faucets, and garden hoses; inability to remember to pick up people in carpool and inability to pick someone up in an unfamiliar place; inability to feed pets; difficulty remembering chores; forgetting to take medications; difficulty remembering to pay bills; difficulty filling out forms and mailing items; inability to recall reading or viewing material; inability to remember places and things that he did or said; forgetting personal hygiene; difficulty measuring; and difficulty remembering memory aids.  He also indicated that he forgot that he was watching his grandchildren when he became involved in another activity or if he was out of sight of them.  The neuropsychologist noted that the Veteran claimed to have severe depression and behavioral difficulties since his injury.  He stated that the Veteran's neurobehavioral effects had impacted his workplace and social interaction on most days.  The Veteran stated that he could be easily manipulated by others because of his memory or cognitive problems and his inability to remember agreements or completed tasks.  The neuropsychologist also noted that the Veteran claimed to be very challenged when it came to understanding complex written concepts and language with deficits in understanding complex verbal language or concepts.  He indicated that, while routine cognitive abilities seemed to function normally in everyday social and written communications, the Veteran's ability dropped off when it involved technical and complex concepts.  

The neuropsychologist indicated that the Veteran's reports show that the Veteran has chronically experienced a range of symptoms and problems from mild to severe due to his TBI.  

During a July 2016 VA examination, the Veteran described persistent, stable TBI-related headaches.  He was unable to report the frequency of his headaches, but he stated that he had "a lot" of headaches that could last up to one hour in duration.  He had associated nausea, photophobia, and phonophobia, but he denied any vomiting or osmophobia.  He also described cognitive symptoms, including poor memory.  He indicated that he forgot dates, appointments, conversations, and past events, as well as whether he took his medications; zipping his pants; where he placed his keys, wallet, and phone; and turning off a faucet or the stove.  He stated that he had no concept of time.  The Veteran related that he was unable to remember material that he read or movies that he watched and that he had a habit of buying the same items repeatedly because he was unable to remember that he had already purchased the item.  He reported that he would probably forget to complete a task if he did not complete it right away.  The Veteran also described poor attention and concentration, losing track of his thoughts, and being easily distracted.  He indicated that he was unable to multi-task.  The examiner did not find that the Veteran had clinically significant problems of executive functions, such as planning, organizing, prioritizing, self-monitoring, problem solving, or setting goals.  He noted that the Veteran processed information at a normal speed.  The Veteran stated that he compensated for his persistent, stable cognitive problems by writing down information, putting reminders in his phone, sticking to routines, and relying on his wife to keep him organized.  The examiner reported that the Veteran's TBI had stabilized.  The examiner also did not find that the Veteran had any clinically significant findings of seizures, dizziness, hypersensitivy to light or sound, vision problems, cranial nerve dysfunction, decreased sense of taste or smell, hearing loss, tinnitus, speech or swallowing difficulties, weakness or paralysis, numbness or paresthesias or other sensory changes, relevant pain, bladder problems, bowel problems, erectile dysfunction, difficulty walking or mobility problems, balance or coordination problems, fatigue, malaise, autonomic dysfunction, endocrine dysfunction, psychiatric symptoms, or neurobehavioral impairment.  The Veteran did not use assistive devices for walking, and he performed all basic and instrumental activities of daily living.  

The VA examiner noted that the Veteran had objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment.  His judgment was normal; his social interaction was routinely appropriate; and he was always oriented to person, time, place, and situation.  His motor activity and visual spatial orientation were normal.  He had subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships.  He had no neurobehavioral effects.  He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language.  His consciousness was normal.  The examiner noted that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI, such as migraines or Meniere's disease.  

The VA examiner noted that the Veteran had been unemployed for several years.  The Veteran believed that his poor memory interfered with his ability to work.  He stated that he routinely forgot to complete tasks and that he was prone to making mistakes.  The examiner opined that, at most, the Veteran was expected to be able to perform simple, repetitive tasks in the absence of significant time pressure in a sedentary environment.  

As noted above, a 70 percent rating requires that a "3" be assigned as the highest level of any one facet.  A 100 percent rating would require a "total" evaluation to be assigned for one or more facets.  As detailed below, the highest level of severity for any facet during the appeal period in this case is "3" under the criteria.  Therefore, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran's disability picture is consistent with a 70 percent rating.  However, the Veteran's TBI has not been shown to be productive of total impairment to warrant a 100 percent rating.

For clarity purposes, the Board will discuss each of the ten facets of cognitive impairment.

Memory, Attention, Concentration, and Executive Functions

The Veteran's memory has been found to be moderately impaired, but there was no objective evidence on testing of severe impairment resulting in severe functional impairment.  Specifically, in a June 2011 VA mental health medication note, the clinician found that the Veteran had "moderate to severe" memory deficits and significant cognitive dysfunction.  In addition, in a February 2015 medical opinion, a private neuropsychologist indicated that the Veteran had moderate memory loss, attention, concentration, and executive functions that sometimes resulted in severe functional impairment.  Moderate memory loss warrants a "3" level impairment for this facet.  

The Board notes that there was no evidence of severe impairment resulting in severe functional impairment to warrant a total evaluation under this facet.  In fact, throughout the appeal, while the Veteran reported that he had a poor memory, he also indicated that he compensated by writing information down, putting reminders into his phone, sticking to routines, and relying on his wife for organization. See, e.g., July 2016 VA examination report. 

Judgment

The Board notes that the Veteran's judgment throughout much of the appeal has been reported as normal. See November 2011, June 2014, July 2016 VA examination reports; August 2011 VA treatment note.  However, in a February 2015 private opinion, the neuropsychologist noted that test results were consistent with moderately impaired judgment for complex or unfamiliar decisions where the Veteran was almost unable to identify and/or understand, and/or weight the alternatives.  He did note, however, that the Veteran had little difficulty with simple decisions.  Therefore, a "2" is assigned for this facet.  There was no evidence that the Veteran had moderately severe impaired judgment for even routine and familiar decisions or that he was occasionally unable to identify, understand, and weigh the alternatives, understand the consequence of his choices, and make a reasonable decision for the next higher evaluation under this facet.  

Social interaction

The Veteran's social interaction was routinely appropriate throughout the appeal. See November 2011, June 2014, July 2016 VA examination reports.  Therefore, a "0" is assigned for this facet.


Orientation

The VA examiners noted that the Veteran was oriented to person, place, time, and situation during VA examinations in November 2011, June 2014, and July 2016.  However, in a November 2011 statement, the Veteran's daughter indicated that the Veteran was found to be wandering around the house, seemingly disoriented.  In addition, in a February 2015 private opinion, the clinician reported that the Veteran indicated that he got lost in unfamiliar settings.  However, he also stated that he was able to operate GPS devices.  He related that he was disoriented to elapsed time and lacked familiarity with places.  He also indicated that he knew the means that he got to a place, but he could not recall the route.  He was fully aware of the present time by reading a clock, his specific location, and his purpose for being in that location.  As such, when considered with objective testing on examination, this represents occasional disorientation to two of the four aspects considered in orientation (person, place, time, and situation).  Therefore, a "2" is assigned for this facet.  There is no evidence that the Veteran was often disoriented to two or more of the four aspects.  Therefore, a higher evaluation is not warranted for this facet.

Motor Impairment

The Veteran's motor activity was reported as normal throughout the appeal. See November 2011, June 2014, July 2016 VA examination reports.  Therefore, a "0" is assigned for this facet.

Visual Spatial Orientation

The category of visual spatial orientation contemplates getting lost, not being able to follow directions, and difficulty using assistive devices, such as GPS.  Throughout the appeal, the Veteran's visual spatial orientation has been reported as normal. See November 2011, June 2014 VA examination reports.  However, in a February 2015 private opinion, the clinician reported that the Veteran indicated that he got lost in unfamiliar settings, but he was able to operate GPS devices.  He indicated that he knew the means that he got to a place, but he could not recall the route.  The Veteran also reported that following verbal directions was a challenge because of memory and attention/concentration problems.  Therefore, a "1" is assigned for this facet.  A higher evaluation is not warranted for this facet because the Veteran reported that he does not have difficulty operating assistive devices, such as GPS.

Subjective symptoms

Subjective symptoms include headaches, dizziness, hypersensitivity to sound and light, blurred or double vision, and marked fatigability.  The November 2011 and July 2016 VA examiners found that the Veteran had subjective symptoms that did not interfere with work; instrumental activities, or daily living; or work, family, or other close relationships.  However, the June 2014 VA examiner noted three or more subjective symptoms that mildly interfered with work, instrumental activities, or daily living; or work, family, or other close relationships.  The Veteran also described experiencing chronic headaches with a fluctuating course.  He had headaches more days than not with pain characterized as dull to sharp.  The Veteran also stated that he had excruciating headaches approximately two to three times per week with increased sensitivity to light and sound that required him to rest for three hours.  He denied having any specific treatment for his headaches and reported that he took over-the-counter Excedrin with some relief.  The examiner noted that the Veteran was not incapacitated by these headaches.  While the Veteran and his family have also reported that the Veteran had severe headaches and he is competent to report these symptoms, VA examiners have consistently stated that these headaches result in mild interferences with instrumental activities of daily living; or work, family, or other close relationships.  As described, this amounts to a level "1" rating for this facet for mild symptoms.  There is no evidence that suggests that three or more subjective symptoms moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships.  Examples of findings at that level impairment include marked fatigability, blurred or double vision, and headaches requiring rest periods during most days.  In this case, the evidence does not show that the Veteran's headaches required rest periods during most days.  In fact, the Veteran denied having any treatment for his headaches, and the VA examiners indicated that they did not cause incapacitating episodes.

Neurobehavioral Effects

Examples of neurobehavioral effects include: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability.  Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects.

Apart from the effects of the Veteran's diagnosed depression, the Veteran's neurobehavioral effects have been normal throughout the appeal. See November 2011, June 2014, July 2016 VA examination reports.  As noted in the Introduction, the Veteran has been separately evaluated for psychiatric disabilities; specifically, he is assigned a 70 percent rating for a persistent depressive disorder.  Therefore, the symptoms associated with this disorder are not to be considered again in the Veteran's rating for TBI. See 38 C.F.R. § 4.14 (the evaluation of the same manifestations under various diagnoses is to be avoided).  Therefore, a "0" is assigned for this facet.

Communication

The Veteran's communication ability has been normal throughout the appeal. See November 2011, June 2014, July 2016 VA examination reports.  Therefore, a "0" is assigned for this facet.

Consciousness

The Veteran has remained conscious throughout the appeal.  Therefore, a total rating is not warranted for this facet.



Conclusion

Finally, the Board has also evaluated the Veteran's headaches to determine whether they warrant a separate rating.  Diagnostic Code 8045 provides that VA will separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headaches, even if that diagnosis is based on subjective symptoms, rated under the table entitled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.  Here, while the Veteran has complained of headaches, the record does not indicate that the Veteran has a separate diagnosis from his TBI, such as migraines, that warrants consideration.  Further, the Board notes that the Veteran denied any treatment for his headaches, and the VA examiners indicated that they did not cause incapacitating episodes.  The Board also finds that the symptoms of the Veteran's headaches are reasonably contemplated by the evaluation of his subjective symptoms.  The Veteran was originally diagnosed with post-concussive syndrome with headaches and mild diminished performance on memory tasks, which was later recharacterized to more accurately reflect his disability as a diagnosis of TBI.  Therefore, the Board finds that the Veteran does not warrant a separate evaluation for his headaches under another diagnostic code.

After considering the evidence of record, the Board finds that the Veteran's symptoms more closely approximate the criteria for a 70 percent disability rating for the entire appeal period.  Specifically, the Board has determined that the Veteran's symptoms warrant a "3" for the facet of memory, attention, concentration, and executive functions.  Because "3" was the highest level of evaluation for at least one facet, the Veteran warrants a 70 percent evaluation.  However, the evidence has not shown that the Veteran warrants a "total" evaluation for one or more facets.  Therefore, the criteria for the next higher rating of 100 percent have not been met or approximated for any period in this appeal. See 38 C.F.R. § 4.124a.  Accordingly, the Board finds that the Veteran's TBI warrants a 70 percent rating, and no higher for the entire appeal period.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

Subject to the law and regulations governing the award of monetary benefits, a 70 percent evaluation for TBI, but no higher, is granted.




____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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