Veteranclaims’s Blog

October 20, 2017

Single Judge Application: 38 C.F.R. § 4.130 (2017); Rating Traumatic Brain Injury (TBI);

Excerpt from decision below:

“Legal Framework for Rating of TBI and Board’s Application to Appellant
The applicable rating criteria for TBI residuals outline three main areas of dysfunction:
cognitive, emotional/behavioral, and physical. 38 C.F.R. § 4.130 (2017).2 The regulatory criteria used for cognitive impairment, what is relevant to this appeal, are: (1) memory, attention, concentration, executive functions; (2) judgment; (3) social interaction; (4) orientation; (5) motor activity; (6) visual-spatial orientation; (7) subjective symptoms; (8) neurobehavioral effects; (9) communication; and (10) consciousness. 38 C.F.R. § 4.124a (2017). Each criterion (referred to as a facet) is given a value from 0 to 5, with 0 indicating no impairment and 5 indicating total impairment.3 Id. Any facet illustrating a total impairment warrants a rating of 100%; however, if no facet shows a total impairment, then the evaluation shall be based on the combined level of impairment of the remaining facets, i.e., 0 = 0%; 1 = 10%; 2 = 40%; and 3=70%. Id.
On May 19, 2009, appellant underwent a VA examination in connection with his TBI
claim. R. 1586-90. As set forth above, the examiner concluded with respect to the first cognition
facet (memory, attention, concentration, and executive functions) that appellant had “moderate
functional impairment.” R. at 1588. The Board recognized that such a “moderate” impairment
would yield a “Level 3” result under the TBI regulations. R. at 19. However, the Board determined that the May 2009 report’s probative value was “undermine[d]” by what the Board concluded to be an inconsistency. Id. Specifically, the Board noted that while the examiner’s conclusion for facet 1 was “moderate” impairment, earlier in the report the examiner had stated that “the [appellant’s] memory impairment [was] ‘mild'” and that the examiner had noted “only some weakness in short term memory based on the tests administered.” Id.
After rejecting (or discrediting in some way)4 the May 2009 report based on its assessment
that it was undermined by an internal inconsistency, the Board proceeded to weigh the other
evidence of record. It ultimately concluded that the “preponderance of the evidence is against a
2 Prior to October 23, 2008, VA used a different means for rating TBI than discussed in the text. See 73 Fed. Reg. 54,693 (discussing regulatory change for TBI ratings). Appellant expressly limits his appeal to the period after the TBI rating mechanism was amended to take on its current form. Appellant’s Br. at 1 n.1. Accordingly, the Court will confine its discussion to the current rating criteria for TBI.
3 Some of the 10 facets have fewer than five levels of impairment. For example, the “subjective symptoms” facet has three levels of impairment (0, 1, and 2), while the “consciousness” impairment has only two levels (0 and Total).
4 As discussed below, the Court is not clear as to precisely what the Board did with respect to the May 2009 examination report. This uncertainty is a significant problem in terms of resolving this appeal.
4
finding that the [appellant’s] memory, attention, concentration and executive function impairment was greater than a Level 1 impairment. . . .” R. at 19. As such, the Board concluded no more than a 10% rating was appropriate for appellant’s TBI. Id. at 19-20.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2891
TERRY J. JOHNSON, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Appellant Terry J. Johnson appeals through counsel a June 3, 2016, Board
of Veterans Appeals’ (Board) decision denying entitlement to an initial rating in excess of 10% for traumatic brain injury (TBI). Record (R.) at 1-22. Appellant makes clear that he is only appealing with respect to an increased rating for the period beginning October 23, 2008. Appellant’s Brief (Br.) at 1, n.1. Arguments concerning the period prior to October 23, 2008, have been abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The matter has been fully briefed and the Court held oral argument on October 10, 2017, at appellant’s request.1 The Court has determined that single judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23 (1990). As discussed below, the Court will set aside the Board’s decision and remand the matter for further proceedings.
1 The Court thanks counsel for both parties for their excellent oral argument. It was very helpful to the Court.
2
I. FACTS AND RELEVANT PROCEDURAL HISTORY
Appellant served honorably in the United States Army from October 1969 to July 1973,
including in Vietnam. He received numerous decorations for his service, including two Purple
Hearts and a Silver Star. The Court acknowledges Mr. Johnson’s service to the nation.
In 1971, appellant was riding on a tank when it struck a landmine, throwing him from the
vehicle and causing him to hit his head and lose consciousness. After this incident, he suffered
from headaches and dizziness. In May 2008, a VA regional office granted service connection for
TBI at an initial compensable rating of 10%.
In September 2008, appellant requested a review of that rating. His claim for an increased
rating was again denied in a February 2010 Statement of the Case, and he perfected his appeal in
March 2010. In November 2014, the Board remanded appellant’s claim for additional development
on a number of issues. The case returned to the Board in June 2016 with the only issue remaining
being the increased rating for TBI. The Board found that appellant was not entitled to a rating
higher than 10%. This appeal followed.
II. ANALYSIS
Appellant argues that he is entitled to reversal of the Board’s decision–more on that
remedial issue in a moment–because the Board clearly erred in rejecting as “internally
inconsistent” a May 2009 VA examination report that set forth this conclusion concerning
appellant’s condition: “Objective evidence on testing of moderate impairment of memory,
attention, concentration or executive functions resulting in moderate functional impairment.” R. at 1588; Appellant’s Br. at 6-9. As will be clear, if the Board had accepted and relied on that
conclusion, appellant would have received a higher rating under applicable law for his serviceconnected TBI. So, this appeal essentially turns on the propriety of the Board’s rejection of this VA examiner’s conclusion.
In the balance of this section, the Court first sets out the relevant legal framework for rating
TBI to provide context. This section also discusses the Board’s application of this legal framework to appellant’s claims. The Court then considers appellant’s assertion that the Board erred in rejecting the May 2009 report’s conclusion concerning the extent of functional effects of his TBI residuals and what is the appropriate remedy for what the Court ultimately finds to be an error in the Board’s discussion.
3
A. Legal Framework for Rating of TBI and Board’s Application to Appellant
The applicable rating criteria for TBI residuals outline three main areas of dysfunction:
cognitive, emotional/behavioral, and physical. 38 C.F.R. § 4.130 (2017).2 The regulatory criteria used for cognitive impairment, what is relevant to this appeal, are: (1) memory, attention, concentration, executive functions; (2) judgment; (3) social interaction; (4) orientation; (5) motor activity; (6) visual-spatial orientation; (7) subjective symptoms; (8) neurobehavioral effects; (9)
communication; and (10) consciousness. 38 C.F.R. § 4.124a (2017). Each criterion (referred to as a facet) is given a value from 0 to 5, with 0 indicating no impairment and 5 indicating total impairment.3 Id. Any facet illustrating a total impairment warrants a rating of 100%; however, if no facet shows a total impairment, then the evaluation shall be based on the combined level of
impairment of the remaining facets, i.e., 0 = 0%; 1 = 10%; 2 = 40%; and 3=70%. Id.
On May 19, 2009, appellant underwent a VA examination in connection with his TBI claim. R. 1586-90. As set forth above, the examiner concluded with respect to the first cognition facet (memory, attention, concentration, and executive functions) that appellant had “moderate functional impairment.” R. at 1588. The Board recognized that such a “moderate” impairment would yield a “Level 3” result under the TBI regulations. R. at 19. However, the Board determined
that the May 2009 report’s probative value was “undermine[d]” by what the Board concluded to be an inconsistency. Id. Specifically, the Board noted that while the examiner’s conclusion for facet 1 was “moderate” impairment, earlier in the report the examiner had stated that “the [appellant’s] memory impairment [was] ‘mild'” and that the examiner had noted “only some weakness in short term memory based on the tests administered.” Id.
After rejecting (or discrediting in some way)4 the May 2009 report based on its assessment that it was undermined by an internal inconsistency, the Board proceeded to weigh the other evidence of record. It ultimately concluded that the “preponderance of the evidence is against a
2 Prior to October 23, 2008, VA used a different means for rating TBI than discussed in the text. See 73 Fed.Reg. 54,693 (discussing regulatory change for TBI ratings). Appellant expressly limits his appeal to the period after the TBI rating mechanism was amended to take on its current form. Appellant’s Br. at 1 n.1. Accordingly, the Court will confine its discussion to the current rating criteria for TBI.
3 Some of the 10 facets have fewer than five levels of impairment. For example, the “subjective symptoms” facet has three levels of impairment (0, 1, and 2), while the “consciousness” impairment has only two levels (0 and
Total).
4 As discussed below, the Court is not clear as to precisely what the Board did with respect to the May 2009 examination report. This uncertainty is a significant problem in terms of resolving this appeal.
4
finding that the [appellant’s] memory, attention, concentration and executive function impairment was greater than a Level 1 impairment. . . .” R. at 19. As such, the Board concluded no more than a 10% rating was appropriate for appellant’s TBI. Id. at 19-20.
B. The Board’s Determination About the May 2009 Report
The Board’s determination of the appropriate degree of disability is a finding of fact subject
to the clearly erroneous standard of review. Smallwood v. Brown, 10 Vet.App. 93, 97 (1997).
Similarly, the Board’s determination of the adequacy of a medical examination is also reviewed
for clear error. D’Aries v. Peake, 22 Vet.App. 97, 104 (2008). And the same is true with respect
to the general weighing of the evidence in which the Board must analyze the probative value of
evidence, account for its persuasiveness, and explain the basis for its rejection of evidence
materially favorable to the claimant. Wise v. Shinseki, 26 Vet.App. 517, 524 (2014); Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Thus,
no matter how one views the issue on appeal, the Court must apply the clearly erroneous standard of review under which it may overturn the Board’s determination only if it “is left with the definite and firm conviction that a mistake has been committed.” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board has an obligation to support all its factual and legal conclusions with an adequate
statement of reasons and bases. 38 U.S.C. § 7104(a). This statement is critically important both
in terms of providing information to claimants necessary to understand the Board’s decision and also to this Court in order to facilitate judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
The Board’s decision fails to provide an adequate statement of reasons or bases for the
weight assigned to the May 2009 VA examination report. The Court is especially confused by the Board’s finding that the May 2009 report was adequate to satisfy its duty to assist, R. at 7-8, while later deeming the examiner’s findings internally inconsistent such that its probative value was undermined, R. at 19. Without a full discussion of this issue, the Court is left without the tools necessary to perform meaningful judicial review while maintaining its role as an appellate body specifically precluded from fact-finding. See 38 U.S.C. § 7261(c). As outlined above, the May 2009 examiner concluded appellant has “moderate impairment of memory, attention,
concentration or executive functions resulting in moderate functional impairment.” R. at 1588. At the same time, the report indisputably uses the term “mild” with respect to memory deficiencies
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alone. R. at 1587. There is nothing in the report to indicate the examiner’s thought process with
respect to either the “mild” or “moderate” references or how they connect with each other. This
should have been a red flag for the Board. See Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007)
(the Board may not rely on a medical examiner’s conclusory statements if they lack supporting
analysis); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (examiner must
provide “not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”).5 Appellant’s argument that the “mild” references deal only with one part of the four-part facet and, therefore, there is nothing inconsistent about it has some force. But the reality is that the Board’s finding that the May 2009 examination was internally inconsistent is not necessarily in error. The Court simply is not in a position to determine if the Board’s conclusion concerning the factual assessment of inconsistency was clearly erroneous because the Board did not explain its reasoning.
This frustration of judicial review is especially so considering that the Board failed to
discuss potentially favorable evidence of record. See Thompson v. Gober, 14 Vet.App. 187, 188
(2000) (the Board’s statement of reasons or bases must explain its reasons for discounting favorable
evidence). The Board noted no autonomic dysfunction, R. at 16, but the May 2009 examiner noted
that there was autonomic dysfunction, R. at 1588. Additionally, the May 2009 examiner noted
“some weakness” in subtracting serial sevens, which the Board failed to discuss.6 The Court is left
only to guess about the potential import of this statement in the factual mix. Furthermore, although
the Board noted the examiner’s finding of “borderline for organic brain syndrome,” R. at 1588, the
Board did not discuss what this meant in terms of appellant’s symptoms under the cognitive
impairment criteria for TBI. Thus, the Board failed to consider or address favorable evidence in
its discussion of the appropriate weight to be given to the May 2009 examination report. See Wise,
26 Vet.App. at 524; Caluza, 7 Vet.App. at 506 ; see also Abernathy v. Principi, 3 Vet.App. 461,
465 (holding that the Board may not merely list evidence that it considered without accounting for
5 The Court is cognizant that “there is no reasons and bases requirement imposed on examiners.” Acevedo v.
Shinseki, 25 Vet.App. 286, 293 (2012). The Court’s point is that without the examiner’s logic, the Board needed to
determine how to assess what could – but only could – seem to be an inconsistency. Perhaps it was able to do so,
without returning the examination report for clarification (although the Court is dubious about that) but, as discussed
above, the Board did not explain its reasoning in sufficient detail for this Court to review its conclusion.
6 Serial subtraction by seven (Serial Seven Test) is used in mental status evaluation as a measure of
concentration or other nonacademic mental abilities. Karzmark P., Validity of the Serial Seven Procedure, 15 INT. J. GERIATR. PSYCHIATRY, no. 8, August 2000, at 677-79.
6
why it found that evidence persuasive or unpersuasive and providing reasons or bases for its
rejection). Perhaps the Board determined that what it deemed an inconsistency about “mild” and “moderate” somehow undermined the report in full, but we are again left to guess if that was the Board’s reasoning. The Court cannot engage in meaningful judicial review without something to review.
As noted earlier, appellant argues that a finding of “mild” memory loss is not necessarily
inconsistent with a finding of “moderate” impairment of memory, attention, concentration, or
executive functions. Thus, appellant concludes that the Board clearly erred in its decision and the May 2009 opinion should properly be considered probative. And, he continues, at a minimum the evidence in this matter will at least be in equipoise if the May 2009 opinion is considered, requiring a decision in his favor under 38 U.S.C. § 5107(b). See, e.g., Appellant’s Br. at 9-13. It is unclear to the Court, however, if the evidence truly would be in equipoise even if the May 2009 is considered. Even if the Court found that the Board clearly erred and the May 2009 opinion were properly accorded probative weight, there are still two other medical opinions from January 2013
and May 2015 and the appellant’s initial February 2008 examination that could potentially support
the Board’s finding of a 10% rating for TBI.7 Appellant has not alleged any error in these other
medical reports, only that the May 2009 report is “significantly more probative” than the January
2013 and May 2015 reports because the May 2009 report contains “two pages of single-spaced
text” and the January 2013 and May 2015 reports “contain only cursory recitations of [appellant’s]
condition” and do not “acknowledge that [appellant] had previously been examined for TBI and
received a higher disability rating . . . .” Appellant’s Br. at 11-12. At the end of the day, appellant
appears to invite the Court to engage in weighing of the evidence in this matter. However, it is the
Board that must initially engage in that weighing exercise. This is why remand is appropriate.8
7 It is difficult for the Court to imagine how, without discounting it entirely, the Board could conclude that
the May 2009 examination supports anything less than a Level 2 impairment. As was discussed at length at oral
argument, if the Board merely discounted the weight of the May 2009 report, it did not explain at all how it could
reach a conclusion that there was only a 10% impairment. Of course, if the May 2009 report is excluded entirely, the
Board’s conclusion would make more sense. The Court’s fundamental difficulty is that the Board did not even really
explain what it was doing with the report, let alone why it was doing it.
8 At oral argument, appellant asserted that the Board should have assigned a staged rating, based on a Level
2 or 3 impairment prior to the January 2013 examination and consistent with the findings of the May 2009
examination. It does not appear that this argument was presented to the Board. Of course, the Board would be required
to address the question if it were reasonably raised by the evidence. However, given the Court’s remand of this matter
for the Board to provide an appropriate discussion of the probative value of the May 2009 examination, the Court
need not address this argument or the Board’s need to discuss it at this time. Appellant is free to raise it to the Board
on remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001).
7
A reader should not take from this resolution that the Court is toothless in terms of its
congressionally authorized power to reverse certain Board decisions. See 38 U.S.C. § 7261(a)(4).
As the U.S. Court of Appeals for the Federal Circuit has made clear, this Court may–and should–
reverse a Board decision on a factual matter when the Court concludes that the Board was clearly erroneous. See, e.g., Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013). Moreover, this
Court is not required to find “uncontroverted evidence” to reverse a Board finding. Id.; see also
Padgett v. Nicholson, 19 Vet.App. 133 (2005 (en banc) (same).9 Nevertheless, there is a lack of
strong precedential support for reversing a Board decision in the face of numerous pieces of
controverting evidence such as are in the record here. After all, as the Federal Circuit held, this
Court “as part of its clear error review, must review the Board’s weighing of the evidence; it may
not weigh any evidence itself.” Deloach, 704 F.3d at 1380 (emphasis in original).10
Finally, it is important to emphasize that this Court certainly may use its power to reverse
to enforce the Secretary’s duty under 38 U.S.C. § 5107(b) to give a claimant the benefit of the
doubt when the evidence is in equipoise. 38 U.S.C. § 7261(b)(1); see Deloach, 704 F.3d at 1379
(“The dual requirement placed on the [Court] by § 7261(a)(4) and (b)–to hold unlawful and set
aside or reverse clearly erroneous findings of fact and take due account of the Secretary’s
application of the benefit of the doubt standard–indicates congressional intent to invest the court with the authority to reverse certain Board decisions.”). If the reversal/remand balance is a scale
on which the Court places the Board’s fact-finding and errors, it is clear under Deloach that the
9 The Court withdrew its opinion in Padgett because the appellant had died. See Padgett v. Nicholson,
19 Vet.App. 334 (2005) (en banc order). The Federal Circuit reversed that decision. See Padgett v. Nicholson,
473 F.3d 1364 (Fed. Cir. 2007). On remand, the Court reissued the 2005 full Court opinion nunc pro tunc to a date
before the appellant’s death. See Padgett v. Peake, 22 Vet.App. 159 (2008).
10 As the Court explored with the parties at oral argument, it may be that there are situations in which a
finding that factual determination X is clearly erroneous will allow the Court to conclude that factual determination Y
is the answer even without further Board action. If there is a such a binary question, one to which there are only two
answers, there will be situations in which a conclusion that one answer is clearly wrong means the other answer must
be right. See generally Van Valkenberg v. Shinseki, 23 Vet.App. 113 (2009). Of course, this may not always be so in
such a binary situation if, for example, there is no evidence in the record at all on the question. But the general
proposition holds that binary questions may allow the Court to determine a fact when the Board erroneously rejects
one of the binary choices leaving only one other option. Moreover, this principle could also be extended to situations
in which there were more than two possible outcomes. But the facts would need to be such that only one of those
options would not be clearly erroneous if found by the Board. But see Byron v. Shinseki, 670 F.3d 1201, 1205-06
(Fed. Cir. 2012) (potentially suggesting that the Board must still make an initial assessment of all factual questions).
The Court need not explore these matters in more detail now because the facts here do not fit the scenario in which
the Court can take such an action without running afoul of 38 U.S.C. § 7261(c).
8
Court may reverse where the scale is at least equal. As described above, this matter does not
appear to be one in which it is. For the Court to reverse here, it would have to do too much in the
way of assessing and balancing evidence. That is not the Court’s role. The better course of action
is to remand this matter for the Board to consider the matter mindful of its responsibility to provide
a statement of reasons and bases that is adequate for judicial review.11
On remand, appellant is free to submit additional evidence and argument, including the
arguments raised in his briefing and oral argument before this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi,
16 Vet.App. 529, 534 (2002). In addition, the Board shall proceed expeditiously on remand, in
accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the parties’ briefs, the record, and the parties’ oral
argument, the Court SETS ASIDE the June 3, 2016, Board decision and REMANDS this matter
for further proceedings consistent with this decision.
DATED: October 19, 2017
Copies to:
Robert J. Fowler, Esq.
VA General Counsel (027)
11 Appellant requested that the Court limit any remand to “whether [appellant] is entitled to a Level 2 or Level
3 disability rating.” Appellant’s Br. at 4; Reply Br. at 1. Given the Court’s rationale for setting aside the Board’s
decision, such an instruction would not be appropriate. The Board should proceed in accordance with this decision
when reconsidering and fully explaining its factual determinations on remand. In this regard, the Court reminds the
Board that “[a] remand is meant to entail a critical examination of the justification for the decision.” Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991).

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