POSTTRAUMATIC STRESS DISORDER (PTSD)

Summary

The Veteran, who served in the Air National Guard from August 1968 to March 1995, appeals the denial of an increased rating for residuals of a Traumatic Brain Injury (TBI) for the period prior to October 23, 2008, and the denial of a 100 percent rating for an acquired psychiatric disorder for the period prior to April 22, 2009. The Board reviewed the evidence, including multiple VA examinations and treatment records. For the acquired psychiatric disorder, the Board found that the Veteran's symptoms, including suicidal ideation, homicidal ideation, impaired impulse control, and persistent delusions/hallucinations, met the criteria for a 100 percent rating throughout the period prior to April 22, 2009. The Board resolved any doubt in the Veteran's favor and granted the 100 percent rating. For the TBI residuals, the Board reviewed the evidence under both prior and current rating criteria. The Board denied an increased rating for the period prior to October 23, 2008, finding the evidence did not support a rating higher than 10 percent under the former criteria. For the period from October 23, 2008, the Board found that the Veteran's cognitive impairment, specifically in memory, attention, concentration, and executive functions, warranted a 40 percent rating, but not higher, as the evidence did not consistently support a higher level of impairment across all relevant facets. The Board granted the 100 percent rating for the acquired psychiatric disorder and the 40 percent rating for TBI residuals for the specified periods.

Rationale

Symptoms consistent with 100% rating criteria (suicidal ideation, homicidal ideation, impaired impulse control, hallucinations); VA treatment records and examination support 100% rating; Resolved doubt in Veteran's favor

Full Decision Text

Citation Nr: 21016960
Decision Date: 03/24/21	Archive Date: 03/24/21

DOCKET NO. 10-23 554
DATE: March 24, 2021

ORDER

A 100 percent disability rating for an acquired psychiatric disorder, including bipolar disorder, for the period prior to April 22, 2009, is granted.

A rating in excess of 10 percent for residuals of a traumatic brain injury (TBI), for the period prior to October 23, 2008, is denied.

A rating of 40 percent, but no higher, for residuals of a TBI, for the period from October 23, 2008 to February 26, 2020, is granted.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran’s acquired psychiatric disorder has been characterized by persistent delusions or hallucinations, persistent danger of hurting self or others, anxiety, suspiciousness, depression, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships.

2. For the period prior to October 23, 2008, the evidence does not demonstrate that Veteran’s residuals of a TBI have been characterized by multi-infarct dementia associated with brain trauma.

3. For the period from October 23, 2008, the Veteran’s residuals of a TBI have been characterized by objective evidence on testing of mild impairment of memory, concentration, attention, and executive functions.

CONCLUSIONS OF LAW

1. The criteria for a 100 percent disability rating for an acquired psychiatric disorder for the period prior to April 22, 2009, have been met. 38 U.S.C. § §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411.

2. The criteria for a rating in excess of 10 percent for residuals of a TBI for the period prior to October 23, 2008, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, DC 6260, 4.124a, DC 8045, 8100 (2008).

3. The criteria for a rating of 40 percent, but no higher, for residuals of a TBI for the period from October 23, 2008, have been met, and in excess of 40 percent for the period thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, DC 6260, 4.124a, DCs 8045, 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty for training in the Air National Guard from August 1968 to March 1995. These matters come before the Board of Veterans’ Appeals (Board) from a September 2008 rating decision.

In July 2011, November 2013, and November 2016, the Board previously remanded the claims for additional development. In an August 2019 decision, the Board remanded the matter of an increased rating for the Veteran’s residuals of a TBI to obtain an addendum VA examination opinion and remanded the matter of an increased rating for an acquired psychiatric disorder for the period prior to April 22, 2009 for the issuance of an supplemental statement of the case (SSOC). For the reasons indicated in the discussion below, the addendum VA examination opinion obtained pursuant to the Board’s remand instructions regarding the Veteran’s residuals of a TBI was adequate and an SSOC regarding the Veteran’s acquired psychiatric disorder was properly issued. Therefore, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although
and instructions regarding the Veteran’s residuals of a TBI was adequate and an SSOC regarding the Veteran’s acquired psychiatric disorder was properly issued. Therefore, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Acquired Psychiatric Disorder

Ratings for acquired psychiatric disorders are assigned under 38 C.F.R. § 4.130, DC 9411. The Veteran is currently assigned a 70 percent rating for his acquired psychiatric disorder for the period prior to April 22, 2009, and a total disability rating for the period thereafter. 

Under DC 9411, for the 70 percent rating criteria, the evidence must show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411.

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

The Board has reviewed the evidence of record and finds that a 100 percent disability rating for the Veteran’s acquired psychiatric disorder, for the period prior to April 22, 2009, is warranted.

In February 2019, the Veteran’s representative submitted a statement regarding the Veteran’s claim of a 100 percent disability rating for the Veteran’s acquired psychiatric disorder for the period prior to April 22, 2009. The representative asserted that prior to the assignment of the 10 percent disability rating, the Veteran experienced psychiatric symptoms consistent with the 100 percent rating criteria. Specifically, the representative stated that the Veteran was hospitalized for suicidal ideation and auditory hallucinations in July 2001. The representative also stated that the Veteran experienced personality changes, extreme frustration, irritability, severe anger, problems with impulse control, and lack of judgement. 

The Board notes that in a January 2019 rating decision, the Veteran was assigned a 100 percent disability rating for his acquired psychiatric disorder
’s representative submitted a statement regarding the Veteran’s claim of a 100 percent disability rating for the Veteran’s acquired psychiatric disorder for the period prior to April 22, 2009. The representative asserted that prior to the assignment of the 10 percent disability rating, the Veteran experienced psychiatric symptoms consistent with the 100 percent rating criteria. Specifically, the representative stated that the Veteran was hospitalized for suicidal ideation and auditory hallucinations in July 2001. The representative also stated that the Veteran experienced personality changes, extreme frustration, irritability, severe anger, problems with impulse control, and lack of judgement. 

The Board notes that in a January 2019 rating decision, the Veteran was assigned a 100 percent disability rating for his acquired psychiatric disorder with an effective date of April 22, 2009. The AOJ determined that the evidence in the April 22, 2009 VA psychiatric examination and May 4, 2014 VA psychiatric examination demonstrated that the Veteran’s acquired psychiatric disorder causes total occupational and social impairment. A review of the April 2009 VA psychiatric examination demonstrates that the examiner determined that the Veteran’s psychiatric symptoms caused total occupational and social impairment, and specifically the examiner found that the Veteran’s psychiatric symptoms that support this level of impairment included suicidal ideation; homicidal ideation; inability to perform some activities of daily living; impaired impulse control including unprovoked irritability with periods of violence; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; depression; anger; social isolation; anxiety; mild short- and long-term memory impairment; and panic attacks. As discussed below, the Board finds that a thorough review of the Veteran’s VA treatment records demonstrates that throughout the period on appeal his psychiatric symptoms were consistent with the findings of the April 2009 VA examiner and also warranted a 100 percent disability rating. 

Regarding the Veteran’s VA treatment records, the July 2003 records indicate psychiatric symptoms consistent with the 100 percent rating criteria. The records indicate that the Veteran was previously hospitalized in 2001 following a suicide attempt. The Veteran reported a history of suicidal ideation with prior attempts and homicidal ideation. The Veteran stated that he did not experience hallucinations but also reported talking to the two distinct personalities in him. The Veteran reported a history of assault and dangerous driving and stated that people are afraid of him when he is manic and angry. The Veteran was recommended to maintain frequent contact for evaluation due to his severe psychiatric symptoms. The June 2008 VA treatment records indicate that the Veteran continued to experience suicidal ideations with planning. The Veteran reported a history of anger with violence, and one of the VA medical providers noted that he had concerns for his own personal safety during the medical appointment due to the Veteran's agitated and angry state. The provider also documented that he could not state enough that the Veteran needs to be under the care of a psychiatrist and on medication. The July 2008 VA treatment records document that the Veteran had paranoid ideations and suspiciousness causing aggressive retaliation and that he may become psychotic in the midst of interpersonal and emotional upheaval. In August 2008 VA treatment records, the Veteran described a long-standing history of violent altercations due to his two distinct personalities. In January 2009 VA treatment records, the Veteran indicated that he was unsure if he was experiencing hallucinations and delusions and indicated that he continued to experience suicidal ideations approximately once per month, impaired impulse control, and anxiety. 

The Board finds that the VA treatment records demonstrate that throughout the period on appeal the Veteran's psychiatric symptoms were consistent with the 100 percent rating criteria. Specifically, the evidence indicates that throughout the period on appeal the Veteran was experiencing persistent delusions or hallucinations as he speaks to two distinct personalities within himself, which is consistent with the 100 percent rating criteria. Further, the evidence indicates that the severity, frequency, and duration of the Veteran’s suicidal ideation, homicidal ideation, and impaired impulse control with violence, rose to the level of being a persistent danger of hurting self or others, which is consistent with the 100 percent rating criteria. Moreover, the Board finds that throughout the period on appeal the Veteran also continued to experience severe symptoms consistent with the 70 percent or lower rating criteria, including anxiety, suspiciousness, depression, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Therefore, the Board finds that a thorough review of the medical evidence of record demonstrates that the Veteran's full disability picture regarding his psychiatric symptoms is most properly contemplated by the 100 percent rating criteria. 

Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a 100 percent disability rating for the Veteran’s acquired psychiatric disorder, including bipolar disorder, for the period prior to April 22, 2009, have been met. Gilbert v. Derwinski, 1 Vet. App. 49
 continued to experience severe symptoms consistent with the 70 percent or lower rating criteria, including anxiety, suspiciousness, depression, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Therefore, the Board finds that a thorough review of the medical evidence of record demonstrates that the Veteran's full disability picture regarding his psychiatric symptoms is most properly contemplated by the 100 percent rating criteria. 

Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a 100 percent disability rating for the Veteran’s acquired psychiatric disorder, including bipolar disorder, for the period prior to April 22, 2009, have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted.

TBI

Ratings regarding traumatic brain injuries TBIs and neurological conditions are assigned under 38 C.F.R. § 4.124a, DC 8045. Additionally, DC 8045 provides that any residuals with a distinct diagnosis may be evaluated under another diagnostic code, such as migraine headaches. Presently, the residuals of the Veteran’s TBI have been assigned a 10 percent rating for the period prior to February 26, 2020, and a 40 percent rating for the period thereafter. The Board notes that Veteran has also been assigned additional disability ratings for residuals of his TBI with distinct diagnoses, including a total disability rating, in light of the above decision, for an acquired psychiatric disorder under 38 C.F.R. § 4.130, DC 9411; a 50 percent rating for migraine headaches under 38 C.F.R. § 4.124a , DC 8100; and a 10 percent rating for tinnitus under 38 C.F.R. § 4.87, DC 6260.

Additionally, prior to October 23, 2008, residuals of a TBI were previously rated under a former version of 38 C.F.R. § 4.124a, DC 8045, which contemplated only brain disease due to trauma and dementia.

Under the present rating criteria, cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified, “which contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” 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. If no facet is evaluated as “total,” a percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. A 100 percent rating is assigned if “total” is the level of evaluation for one or more facets.

The Board has reviewed the evidence of record and finds that a rating in excess of 10 percent for residuals of a TBI is not warranted for the period prior to October 23, 2008 under the prior code; a rating of 40 percent, but no higher, for residuals of a TBI is warranted, for the period from October 23, 2008 to February 26, 2020; and, a rating in excess of 40 for the period thereafter is not warranted.

In February 2019, the Veteran’s representative submitted a statement regarding the Veteran’s claim of an increased rating for the Veteran’s residuals of a TBI. The representative asserted that the Veteran was initially granted a 10 percent rating based on non-prostrating headaches from November 26, 2002. In support of an increased rating, the representative discussed the Veteran’s severe psychiatric symptoms. The representative also stated that during the August 2008 VA examination regarding the Veteran’s TBI he reported a decline in concentration and short-term memory as well as severe psychiatric symptoms. The representative also noted that the August 2008 VA examination indicated borderline impaired intellectual functioning in sustained concentration and visual reproduction as well as mild deficits in sustained concentration, short-term memory, and some areas of executive function. Further, regarding the August 2017 VA examination, the representative stated that in the Veteran endorsed impairments in the facets of memory, concentration, attention, and executive functions. The representative also stated that the findings suggest that a level 3 impairment may be present in the facets of judgment and social isolation and that level 2 impairment may be present in the facet of neurobehavioral effects.

Regarding the severity of the Veteran’s residuals of a TBI, the Veteran under a VA examination in August
 memory as well as severe psychiatric symptoms. The representative also noted that the August 2008 VA examination indicated borderline impaired intellectual functioning in sustained concentration and visual reproduction as well as mild deficits in sustained concentration, short-term memory, and some areas of executive function. Further, regarding the August 2017 VA examination, the representative stated that in the Veteran endorsed impairments in the facets of memory, concentration, attention, and executive functions. The representative also stated that the findings suggest that a level 3 impairment may be present in the facets of judgment and social isolation and that level 2 impairment may be present in the facet of neurobehavioral effects.

Regarding the severity of the Veteran’s residuals of a TBI, the Veteran under a VA examination in August 2008. The Veteran reported dizziness and problems with short-term memory, concentration, written instructions, and carrying out tasks. Further, the Veteran reported symptoms regarding his acquired psychiatric disorder and migraine headaches. The examiner determined that on objective testing the Veteran’s memory, attention, and concentration varied from borderline impaired to moderately impaired. The examiner did not make any findings indicating that the Veteran has multi-infarct dementia associated with brain trauma.

In April 2009, the Veteran underwent a second VA examination regarding the residuals of his TBI. The examiner documented that the Veteran has a history of decreased attention, difficulty concentration, and difficulty with executive functions. The Veteran also reported symptoms regarding his acquired psychiatric disorder and migraine headaches. The examiner determined that the Veteran’s impairment level in the facet of memory, concentration, attention, and executive functions was a complaint of mild memory loss; his level of impairment in the facet of subjective symptoms does not interfere with work, instrumental ADLs, or work, family, or other close relationships; and, his level of impairment in the facet of neurobehavioral effects does not interfere with workplace interaction or social interaction. The examiner also determined that the Veteran’s level of impairment was normal in the facets of judgment, social interaction, orientation, consciousness, communication, motor activity, and visual spatial orientation. The examiner did not make any findings indicating that the Veteran has multi-infarct dementia associated with brain trauma. Lastly, the evidence indicates that neuropsychological testing was not administered during this examination. 

In April 2017, the Veteran underwent a third VA examination regarding the residuals of his TBI. The examiner determined that the Veteran’s impairment level in the facet of memory, concentration, attention, and executive functions was a complaint of mild memory loss; his level of impairment in the facet of judgment is mildly impaired judgment, due to his psychiatric symptoms; his level of impairment in the facet of social interaction is frequently inappropriate, due to his psychiatric symptoms; his level of impairment in the facet of subjective symptoms is three or more subjective symptoms that mildly interfere with work, due to his migraine headaches and tinnitus; and, his level of impairment in the facet of neurobehavioral effects is one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them, due to his psychiatric symptoms. The examiner also determined that the Veteran’s level of impairment was normal in the facets of orientation, motor activity, consciousness, communication, and visual spatial orientation. The examiner did not make any findings indicating that the Veteran has multi-infarct dementia associated with brain trauma. Lastly, the examiner noted that the neuropsychological test data relied upon was conducted during the August 2008 VA examination. 

In February 2020, the Veteran underwent a fourth VA examination regarding the residuals of his TBI. The Veteran reported that his short-term memory is bad, that he has difficulties in following television shows and movies, and that his wife takes care of the bank account and other executive functions. The examiner determined that the Veteran’s impairment level in the facet of memory, concentration, attention, and executive functions is objective evidence on testing resulting in mild functional impairment; his level of impairment in the facet of judgment is moderately impaired judgment, due to his psychiatric symptoms; his level of impairment in the facet of social interaction is occasionally inappropriate, due to his psychiatric symptoms; his level of impairment in the facet of subjective symptoms is three or more subjective symptoms that mildly interfere with work, due to his migraine headaches, tinnitus, and poor sleep; his level of impairment in the facet of communication is occasionally impaired; and, his level of impairment in the facet of neurobehavioral effects is one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them, due to his psychiatric symptoms. The examiner also determined that the Veteran’s level of impairment was normal in the facets of orientation, motor activity, consciousness, and visual spatial orientation. The examiner did not make any findings indicating that the Veteran has multi-infarct dementia associated with brain trauma. Additionally, pursuant to the August 2019 Board remand, an addendum VA examination opinion was
 that mildly interfere with work, due to his migraine headaches, tinnitus, and poor sleep; his level of impairment in the facet of communication is occasionally impaired; and, his level of impairment in the facet of neurobehavioral effects is one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them, due to his psychiatric symptoms. The examiner also determined that the Veteran’s level of impairment was normal in the facets of orientation, motor activity, consciousness, and visual spatial orientation. The examiner did not make any findings indicating that the Veteran has multi-infarct dementia associated with brain trauma. Additionally, pursuant to the August 2019 Board remand, an addendum VA examination opinion was provided in December 2020, in which the examiner determined that it is at least as likely as not that the Veteran’s level of cognitive functioning is competent enough to manage his financial affairs.

Regarding the Veteran’s claim of an increased rating for the period prior to October 23, 2008, as discussed above, the Board may only consider the former TBI criteria due to the specific provision in the regulation prohibiting application of the new criteria prior to its October 23, 2008 effective date. The Board finds that the probative medical evidence of record does not indicate that the Veteran has multi-infarct dementia associated with brain trauma. Therefore, a rating in excess of 10 percent under the former DC 8045 rating criteria for the period prior to October 23, 2008, is not warranted. 38 C.F.R. § 4.124a, DC 8045 (2008).

Regarding the Veteran’s claim of an increased rating for period from October 23, 2008, the Board finds a rating of 40 percent, but no higher is warranted. Although the February 2020 VA examiner was the first examiner to determine under the new criteria that the Veteran’s level of impairment in the facet of memory, attention, concentration, and executive functions is objective evidence on testing resulting in mild functional impairment, which consistent is with a severity level of 2 and warrants a 40 percent rating, the evidence indicates that the Veteran’s impairment in this facet has been consistent throughout the relevant period on appeal. Specifically, the August 2008 VA examiner determined upon objective testing that the Veteran’s memory, attention, and concentration varied from borderline to moderately impaired, and the February 2020 VA examiner determined upon objective testing that the Veteran’s memory, attention, and concentration was a mild impairment. The April 2009 and April 2017 VA examiners determined that the level of impairment was a lesser complaint of mild memory loss; however, the examiners did not conduct any neuropsychological testing to substantiate these findings and the Veteran did not report any improvement regarding these symptoms. Further, the evidence does not demonstrate that a severity level of 3, which would warrant a 70 percent rating, is present in the facet of memory, attention, concentration, and executive functions as none of the examiners determined that the Veteran’s overall level of impairment in this facet is moderate functional impairment. Therefore, the Board finds that throughout the relevant period on appeal, the Veteran’s overall level of impairment in the facet of memory, attention, concentration, and executive functions is objective evidence on testing resulting in mild functional impairment, which is consistent with a severity level of 2 and warrants a 40 percent rating, but no higher.

Regarding the remaining facets, the evidence demonstrates that either the facets are not relevant for consideration because they are being used to support an evaluation for a disability with a distinct diagnosis under a separate rating or the levels of impairment in these facets are not higher than a level 1 in severity; thus, the facet of memory, attention, concentration, and executive functions remains the Veteran’s highest rated facet. First, the Veteran's level of impairment in the facets of judgement, social interaction, and neurobehavioral effects are being used to support his total disability rating for his acquired psychiatric disorder; thus, the level of impairment in these facets are not relevant for consideration. Second, the Veteran’s level of impairment in the facet of subjective symptoms is primarily being used to support his 50 percent rating for migraine headaches and 10 percent rating for tinnitus; thus, the level of impairment in this facet is not relevant for consideration. Lastly, the probative medical evidence of record does not demonstrate any findings indicating that the Veteran has an impairment level greater than 1 in severity to warrant a rating in excess of 40 in the facets of orientation, communication, motor activity, consciousness, and visual spatial orientation. Therefore, the Board finds that considering the facets other than the facet of memory, attention, concentration, and executive functions, a rating in excess of 40 percent for residuals of a TBI throughout the relevant period on appeal is not warranted.

Accordingly, resolving any remaining reasonable doubt in the Veteran’s
 used to support his 50 percent rating for migraine headaches and 10 percent rating for tinnitus; thus, the level of impairment in this facet is not relevant for consideration. Lastly, the probative medical evidence of record does not demonstrate any findings indicating that the Veteran has an impairment level greater than 1 in severity to warrant a rating in excess of 40 in the facets of orientation, communication, motor activity, consciousness, and visual spatial orientation. Therefore, the Board finds that considering the facets other than the facet of memory, attention, concentration, and executive functions, a rating in excess of 40 percent for residuals of a TBI throughout the relevant period on appeal is not warranted.

Accordingly, resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the preponderance of the evidence establishes that a rating in excess of 10 percent for residuals of a TBI is not warranted for the period prior to October 23, 2008; a rating of 40 percent, but no higher, for residuals of a TBI is warranted, for the period from October 23, 2008, to February 26, 2020; and, a rating in excess of 40 for the period thereafter is not warranted.

 

 

JAMES L. MARCH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Page-Nelson, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.