Veteranclaims’s Blog

March 20, 2020

Single Judge Application; Residuals of TBI; DC 8045; 38 C.F.R. § 4.124a; residuals of TBI that are not attributed to a separate diagnosis should be evaluated under the table of facets found in § 4.124a—”Evaluation of Cognitive Impairment & Other Residuals of TBI Not Otherwise Classified”;

Filed under: Uncategorized — veteranclaims @ 12:31 am

Residuals of TBI are rated under DC 8045. The regulation identifies three areas of dysfunction associated with TBI— emotional/behavioral, physical, and cognitive—and notes that each area of dysfunction “may require evaluation.” 38 C.F.R. § 4.124a. Generally, if the veteran’s TBI residuals can be attributed to a distinct diagnosis, the Board must separately evaluate that disability under an appropriate DC. But all other residuals of TBI that are not attributed to a separate diagnosis should be evaluated under the table of facets found in § 4.124a—”Evaluation of Cognitive Impairment & Other Residuals of TBI Not Otherwise Classified.” The DC’s rating table groups symptoms into 10 “facets”: memory, attention, concentration, and executive function; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms;
neurobehavioral effects; communication; and consciousness. Id. Each facet provides evaluations from 0 to 5, with 0 indicating a 10% rating and 5 indicating a 100% rating.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-6795
RESTITUTO RUIZ, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Restituto Ruiz appeals a November 2018 Board decision that denied
entitlement to an initial rating in excess of 10% for traumatic brain injury (TBI) with residual
headaches and giddiness. The veteran argues that the Board failed to provide an adequate statement
of reasons or bases in evaluating his TBI, including failing to evaluate diagnoses and symptoms
that he argues are related to his TBI. Rating TBI is complex, but generally it requires the Board to
evaluate symptoms that are attributed to a diagnosis under an appropriate diagnostic code (DC)
and to evaluate any other symptoms not attributed to a diagnosis under the “facets” provided in
38 C.F.R. § 4.124a, DC 8045. Because the Board did not properly evaluate the veteran’s diagnoses
and symptoms associated with his TBI, the Court vacates and remands.
I. BACKGROUND
Mr. Ruiz served in the Army from April 1965 to March 1967, including one year of service
in Vietnam. In May 1966, a 200-pound box fell on his head while he was unloading a truck. He
was hospitalized for three days. Decades after he was discharged, in 2005, Mr. Ruiz filed a claim
for service connection for his head injury. The veteran’s original claim was finally denied in a
September 2005 Statement of the Case because he did not appeal.
2
In July 2009, Mr. Ruiz requested that VA reopen his claim for service connection for “head
trauma.” R. at 1155. Almost one year later, in June 2010, he underwent two examinations—one
for TBI provided by a neurologist and one for mental disorders provided by a psychiatrist—so VA
could determine whether he had any residual disabilities related to his 1966 head injury.
During the mental disorders examination, the veteran reported that, since his discharge
from service, he has experienced nightmares involving persecution and violence and moderate
anxiety. The psychiatrist noted that the veteran did not exhibit obsessive or ritualistic behaviors or
panic attacks or experience suicidal or homicidal ideations. She noted that his remote and recent
memory were normal but his immediate memory was “severely impaired.” R. at 1053. The
psychiatrist diagnosed major depressive disorder. She opined that his depression was not related
to his service-connected condyloma acuminate 1 , but she did not comment on whether his
depression has any relation to his TBI or in-service head injury.
After the veteran’s TBI examination, the VA neurologist diagnosed TBI and opined that it
was related to his 1966 head injury. The neurologist found that he had decreased attention and
mild memory loss. He also related that the veteran began experiencing headaches a few weeks
after his head trauma, occurring two to three times per week and lasting several hours each time.
The neurologist noted that the veteran also experienced imbalance, giddiness, dizziness, and
vertigo, and opined that these symptoms were also associated with his headaches. And while the
veteran reported experiencing erectile dysfunction, the neurologist found that this was more likely
due to his advanced age.
In August 2010, VA granted service connection for residuals of TBI and assigned a 10%
rating. VA also denied service connection for depression because the evidence didn’t show that it
was related to the veteran’s other already service-connected disabilities. VA did not address
whether the veteran’s depression was related to his TBI. Mr. Ruiz filed a Notice of Disagreement,
asserting that he was entitled to a higher rating because he suffered from dizziness, poor
concentration, and disorientation that frequently led to him becoming lost. VA continued Mr.
Ruiz’s 10% TBI rating and the veteran appealed to the Board, asserting that VA did not consider
favorable medical records and lay statements concerning his level of impairment.
1 A “condyloma accuminatum” is “a type of papilloma usually found on the mucous membrane of skin of the
external genitals or in the perinanal region.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 402 (32d ed. 2012).
3
Over three years later and before his case was certified to the Board, Mr. Ruiz submitted
another statement, in which he asserted that his nightmares were worsening and contributing to
increased anxiety and disruptions to his family life.
Then, in March 2015, the veteran underwent a private evaluation in support of his claim
for a higher TBI rating. The private physician did not examine Mr. Ruiz but did review the claims
file, including his service treatment records, post-service treatment records, and VA adjudications.
The physician opined that it was “at least as likely as not that Mr. Ruiz’s depression is caused in
part by a combination of” diabetes, TBI, and atherosclerotic heart disease. R. at 561. His reasoning
involved a detailed discussion of several medical journal articles regarding the associations
between depression and these disabilities. Regarding TBI, he opined that it was “another potential
contributing factor to depression” because head injuries are “a well-documented cause of
depression.” Id. at 560. He reasoned that “[t]he long time duration between the injury and the
documented presence of depression in Mr. Ruiz’s case does not rule out any causative connection,”
explaining that “[t]rauma to the head resulting in one single concussion may sometimes begin a
series of biochemical events in the brain which over time will result in degenerative nerve changes
similar to those found in Alzheimer’s disease.” Id.
In October 2015, the veteran sought psychiatric treatment for a history of depression and
anxiety. On examination, he was found to be oriented to person, time, place, and situation. He
appeared cooperative and reasonable, had no unusual thought processes or thought content, and
was oriented in all spheres. But he endorsed symptoms of depression, anxiety, panic, trauma,
mania, and psychosis. The psychiatrist noted that the veteran presented cognitive and dementia
symptoms, including impairments in concentration, memory, and following instructions. The
examiner also noted that the veteran’s cognitive symptoms included impairments in orientation,
even though the examiner noted that he was oriented to person, time, place, and situation. The
psychiatrist opined that the veteran clearly had a cognitive disorder but that the veteran had no
awareness that he had a cognitive disorder. The psychiatrist diagnosed the veteran with “depressive
disorder due to another medical condition with depressive features” and an “unspecified
neurocognitive disorder.” R. at 474 (capitalization altered).
In November 2015, five years after the veteran filed his Substantive Appeal, the Board
remanded his case to “determine the current extent and severity” of his TBI, because he had
4
submitted “credible evidence that [his TBI] may have worsened since his last examination.” R. at
522.
That new examination did not take place until June 2018. The examiner diagnosed TBI and
post-traumatic headaches. The examiner noted that the veteran’s cognitive facets were normal but
that he had mild short-term memory problems. The examiner opined that the veteran’s residuals of
TBI included daily headaches, which were not prostrating, and dizziness or vertigo.
In the decision on appeal, the Board determined that the veteran was entitled to a TBI rating no higher than 10%. As noted above, the evaluation scheme for this disability is complex.
Residuals of TBI are rated under DC 8045. The regulation identifies three areas of dysfunction associated with TBI— emotional/behavioral, physical, and cognitive—and notes that each area of dysfunction “may require evaluation.” 38 C.F.R. § 4.124a. Generally, if the veteran’s TBI residuals can be attributed to a distinct diagnosis, the Board must separately evaluate that disability under an appropriate DC. But all other residuals of TBI that are not attributed to a separate diagnosis should be evaluated under the table of facets found in § 4.124a—”Evaluation of Cognitive Impairment & Other Residuals of TBI Not Otherwise Classified.” The DC’s rating table groups symptoms into 10 “facets”: memory, attention, concentration, and executive function; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms;
neurobehavioral effects; communication; and consciousness. Id. Each facet provides evaluations from 0 to 5, with 0 indicating a 10% rating and 5 indicating a 100% rating.

In determining that Mr. Ruiz was entitled to no more than a 10% rating, the Board
addressed only the June 2018 VA examination reports and concluded that the “competent and
probative findings on clinical examination showed that the [v]eteran did not manifest with an
impairment higher than mild (level 1 impairment) on any of the relevant facets.” R. at 13. The
Board also separately evaluated the veteran’s headache condition under DC 8100, concluding that
his headaches did not warrant a compensable rating because he didn’t experience “characteristic
prostrating attacks”—a requirement of the lowest compensable rating. 38 C.F.R. § 4.124a.
Depression was not mentioned.
I. ANALYSIS
The Board has an obligation in every case to provide a statement of reasons or bases that
allows the claimant to understand the precise basis for its decision and facilitates review in this
5
Court. Hedgepath v. Wilkie, 30 Vet.App. 318, 325 (2018). “To comply with this requirement, the
Board must analyze the credibility and probative value of the evidence, account for the evidence
it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the claimant.” Id. Mr. Ruiz raises several arguments regarding the adequacy
of the Board’s statement of reasons or bases. He argues that he has distinct diagnoses that were not
evaluated separately and that the Board failed to evaluate his other residual symptoms under the
facets provided in DC 8045. The Court will address these arguments as they pertain to each area of dysfunction.
A. Emotional & Behavioral Dysfunction
The first area of dysfunction requiring evaluation is emotional/behavioral. Under DC 8045,
if a veteran has a mental disorder diagnosis related to TBI, then the Board must evaluate that
disorder under 38 C.F.R. § 4.130.
Here, Mr. Ruiz has diagnoses of depression and generalized anxiety disorder, which he
argues are related to TBI and required separate evaluation under § 4.130. For instance, Mr. Ruiz’s
private physician opined that TBI was at least as likely as not “another potential contributing factor
to depression” because head injuries are “a well-documented cause of depression.” R. at 560.
Moreover, Mr. Ruiz has continuously related his depression and anxiety to his TBI. See R. at 1155; The Secretary doesn’t dispute that the Board failed to address his depression or anxiety diagnoses but argues that the Board didn’t need to address these diagnoses because the evidence does not relate them to TBI.
However, whether the veteran’s depression and anxiety disorders are related to his TBI is a question that must be addressed by the Board in the first instance. And the Secretary is wrong that there is no evidence of record relating depression to TBI: the March 2015 private opinion does. The Secretary contends that the Court can ignore this opinion because it was “speculative” and deficient in other respects. Secretary’s Br. at 13. But those are determinations for the Board to
make after a fair and holistic reading of the opinion. Certainly, the opinion is not so inadequate that the Court can say it was harmless error for the Board to ignore it. Because the Board did not acknowledge the veteran’s diagnoses, their potential relationship to his TBI, or whether they
require separate evaluations, its statement of reasons or bases is inadequate. See Hedgepath, 30 Vet.App. at 325.
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B. Physical Dysfunction
Physical (including neurological) dysfunctions also require evaluation under an
appropriate DC if there is a diagnosed disability related to TBI. 38 C.F.R. § 4.124a, DC 8045.
Physical and neurological dysfunctions include motor or sensory dysfunctions; visual impairments; hearing loss; tinnitus; seizures; loss of smell; loss of taste; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id.
The appellant argues that the Board failed to address his problems with gait, coordination, and balance. In June 2010, a VA examiner attributed the veteran’s dizziness, vertigo, and imbalance to his headaches, which in turn were associated with his TBI. And in July 2010, Mr. Ruiz was prescribed a cane because he was experiencing “ambulation impairments due to loss of balance.” R. at 953. The Secretary doesn’t dispute that the veteran had gait and balance dysfunctions, but rather argues that the Board didn’t need to address these dysfunctions because
the medical evidence did not attribute these symptoms to his TBI.
But the Court cannot agree with the Secretary’s argument because the evidence does provide at least some indication that his gait and balance problems may be related to his TBI. The
June 2010 examiner specifically related the veteran’s imbalance to his headaches, and his
headaches have been associated with his TBI. This evidence requires the Board’s attention. Thus,
further discussion from the Board is necessary regarding whether the veteran’s gait and balance
problems are related to his TBI and perhaps warranted separate evaluation under an appropriate diagnostic code or the facets.
C. Cognitive Dysfunction
Finally, cognitive dysfunctions must also be evaluated under an appropriate diagnostic code if there is a distinct diagnosis. 38 C.F.R. § 4.124a, DC 8045. Any other symptoms of cognitive dysfunction that are not attributed to a diagnosis must be evaluated under the facets provided in DC 8045. “Cognitive impairment is defined as decreased memory, concentration, attention, and
executive functions of the brain.” Id. Executive functions include “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.” Id.
7
The veteran argues that the Board failed to address an October 2015 diagnosis of
unspecified neurocognitive disorder, which was premised on his presentation of symptoms of
“impairment in concentration, impairment in memory, difficulty following instructions, [and]
disorientation.” R. at 472, 474. He also argues that the Board failed to reconcile its finding that his
memory loss and concentration impairments were mild with evidence indicating that his memory
loss and concentration are severe. Such evidence includes a June 2010 VA treatment record noting
that his memory loss was severe, lay statements that indicate that he gets lost frequently, and an
October 2015 VA psychiatry note revealing that he has “significant problems remembering his
grandchildren and their names.” R. at 471-72. He also noted that a May 2018 VA psychiatry note
states that he had “difficulty following instructions, difficulty handling complex tasks, and poor
reasoning ability.” R. at 200-01.
Once more, the Secretary doesn’t—and can’t—dispute that the Board omitted this evidence
from its analysis. Instead, the Secretary argues that remand is not warranted because this evidence
does not support a higher rating. Specifically, the Secretary argues that DC 8045 requires
“objective evidence” of memory loss or concentration to receive a rating higher than 10%, and the
evidence does not demonstrate objective evidence of memory loss.
But the Secretary’s argument does not appreciate that the veteran’s symptoms in this realm
include more than just memory loss and concentration. The veteran has identified symptoms of
disorientation, difficulty following instructions, and difficulty handling complex tasks. The Board
has not addressed these symptoms at all. And these symptoms are found in the “[v]isual spatial
orientation” or “orientation” facets and may require separate evaluation. Because the Board
summarily concluded without further explanation that the veteran’s symptoms did not warrant a
rating higher than 10% under any of the facets in DC 8045, remand is warranted for further
discussion.
As this matter is being remanded for readjudication, the Court need not address the
veteran’s remaining contentions, namely, that the VA examinations and opinions are inadequate.
On remand, the appellant may present, and the Board must consider, additional evidence and
argument. Turner v. Shulkin, 29 Vet.App. 207, 220 (2018).
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III. CONCLUSION
Accordingly, upon consideration of the foregoing, the Court VACATES the November 5,
2018, Board decision and REMANDS the matter for readjudication consistent with this decision.
DATED: March 18, 2020
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)

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