Citation Nr: 1237649	
Decision Date: 11/02/12    Archive Date: 11/09/12

DOCKET NO.  08-39 734	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for residuals of traumatic brain injury (TBI).

2.  Entitlement to service connection for a sleep disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for left ear hearing loss.

4.  Entitlement to an initial rating greater than 10 percent for PTSD.

5.  Entitlement to an increased initial rating for a left ankle disorder, rated as noncompensable for the period prior to October 12, 2010, and 10 percent for the period thereafter.

6.  Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder (PTSD).

7.  Entitlement to service connection for hypertension.

8.  Entitlement to an initial compensable rating for right (major) shoulder recurrent dislocation disorder.

9.  Entitlement to an initial compensable rating for a musculoligamentous strain of the left ankle.

10.  Entitlement to higher initial ratings for degenerative disc disease of the cervical spine status post cervical fusion, rated as 10 percent disabling from October 2, 2007 to October 11, 2010, 30 percent disabling from October 12, 2010 to February 29, 2012, and 10 percent disabling since March 1, 2012, including the issue of whether the RO properly reduced the 30 percent disability rating based upon a finding of clear and unmistakable error (CUE).

11.  Entitlement to a temporary total evaluation for degenerative disc disease of the cervical spine status post cervical fusion.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from February 1988 to July 1998 and from August 2004 to October 2005, with service in Iraq.  He also has additional service in the Reserves. 

This appeal first came before the Board of Veterans' Appeals (Board) from rating decisions from the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans Affairs (VA).

In pertinent part, a May 2010 Board decision denied the claim of entitlement to service connection for TBI.  Other matters which were before the Board at the time were remanded.  The Veteran appealed the May 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In April 2011, the Court remanded the claim to the Board pursuant to the terms of a Joint Motion for Remand (JMR).  The Board remanded the TBI issue to the RO in November 2011.

The RO has certified this appeal to the Board under two different docket numbers.  The Board has consolidated this appeal under the original docket number.

A review of the Virtual VA electronic storage system reveals the addition of VA clinical records since April 2012 which are potentially relevant to the claims on appeal, but have not been reviewed by the RO in connection with the claims listed on the title page.  In September 2012, the Veteran's attorney waived RO consideration of this evidence in the first instance.  The Board emphasizes that some of the evidence discussed herein is located only in the Virtual VA electronic storage system.

The issues of entitlement to service connection for hypertension and erectile dysfunction, higher initial ratings for right shoulder and cervical spine disabilities, and entitlement to a temporary total evaluation for degenerative disc disease of the cervical spine status post cervical fusion are REMANDED to the RO.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  The Veteran incurred a TBI during active military service.

2.  The Veteran's currently diagnosed sleep apnea had its onset during active service.

3.  The Veteran does not manifest a left ear hearing loss disability per VA standards.

4.  For the time period prior to April 2012, the Veteran's PTSD was primarily manifested by mild and transient disturbances in mood, affect, motivation, social relations and subjective decrease in cognitive function which decreased work deficiency and occupational tasks only during periods of significant stress.

5.  Since April 2012, the Veteran's PTSD has been primarily manifested by disturbances in mood, affect, motivation, social relations and subjective decrease in cognitive function which have resulted in occasional decrease in work efficiency and social relations.

6.  Throughout the entire appeal period, the Veteran's left ankle disability results in painful motion, laxity and recurrent sprains with objective periarticular pathology, but less than marked motion loss even when considering functional limitation on use; there is no ankylosis.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for residuals of TBI have been met.  38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002); 38 C.F.R. § 3.303 (2011).

2.  The criteria for entitlement to service connection for obstructive sleep apnea have been met.  38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002); 38 C.F.R. § 3.303 (2011).

3.  The criteria for entitlement to service connection for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002); 38 C.F.R. § 3.385 (2011).

4.  The criteria for a rating greater than 10 percent for PTSD have not been met for the time period prior to April 2012, but the criteria for a 30 percent rating have been met since April 2012.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2011).

5.  The criteria for entitlement to a 10 percent initial rating, but no higher, for service-connected left ankle disability have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.16, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks to establish his entitlement to service connection for residuals of TBI incurred during combat, obstructive sleep apnea, and left ear hearing loss.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997).  Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Under VA regulations, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran also seeks higher initial ratings for his service-connected PTSD and left ankle disabilities.  Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded).  Reasonable doubt as to the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Butts v. Brown, 5 Vet. App. 532, 538 (1993).

PTSD is evaluated under the criteria of DC 9411.  See 38 C.F.R. § 4.130.  The currently assigned 10 percent rating contemplates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

A 30 percent rating is assigned where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  Id.

A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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.  Id.

A 100 percent evaluation is warranted where there is 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; intermittent 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 nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV").  38 C.F.R. § 4.130.  DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness.  Higher scores correspond to better functioning of the individual. 

Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. 

GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). 

GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). 

GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work). 

Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Included within 38 C.F.R. § 4.71a are multiple DCs that impairment resulting from ankle disorders include DC 5270 (ankylosis), DC 5271 (limitation of ankle motion), DC 5272 (ankylosis of the subastragalar or tarsal joint), DC 5273 (malunion of the os calcis or astragulus), and DC 5274 (astragalectomy). 

The criteria of DC 5271 provide a 10 percent rating for moderate limitation of ankle motion.  38 C.F.R. § 4.71a, DC 5271.  A 20 percent rating is warranted for marked limitation of ankle motion.  Id.  Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II.

As the lay and medical evidence does not reflect a history of ankylosis, malunion of the os calcis or astragalus, or astragalectomy, the criteria of DCs 5270, 5273 and 5274 do not apply. 

Under DC 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added, under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, DC 5003. 

VA regulations instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure).  See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988).  See generally 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position).

The words "slight," "moderate" and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision.  38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. 

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

A combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service.  38 U.S.C.A. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).  The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996).  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology. 

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R. § 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R. § 3.159(a)(2).

Service connection claims

I.  Residuals of TBI

The facts of this issue may be briefly summarized.  The Veteran served in Iraq and Kuwait from October 2004 to September 2005 as a Cavalry Scout.  He has reported that his convoy platoon was subject to 28 separate exposures to Improvised Explosive Devices (IEDs), including 4 separate IEDs in one attack.  The Veteran has been awarded service connection for PTSD based, in part, upon his IED exposures.  See RO rating decision dated February 2008.  The Board has already accepted as true the Veteran's descriptions of sustaining IEDs during his Iraq service with minor loss of consciousness.  See Board's May 2010 decision, p. 16.

The Veteran claims TBI residuals from the IEDs which include balance problems, dizziness, irritability, sleep difficulty, and cognitive dysfunction such as slowness of thought and concentration difficulty.

The dispositive issue on appeal concerns whether the Veteran manifests any residuals of TBI.  This is a complicated medical question as qualified TBI examiners have attributed the Veteran's current cognitive and memory problems, as well as other psychiatric complaints, due to the concurrently manifested service-connected PTSD disability.  See VA PTSD examination report dated December 2007; the March 2008 TBI examination report; the July 2008 VA TBI examination report; the July 2008 VA PTSD examination report; and the August 2008 examination report with December 2008 addendum.

Among these examination reports, a July 2008 TBI examination report opined that it is at least as likely as not that the Veteran manifests some cerebral dysfunction, involving cognitive and memory issues, as a result of the TBI.  A VA examiner in 2008 found a hint of foot Babinski on the right as well as slightly decreased sharp vibration which was initially attributed, at least as likely as not, with TBI residuals.  Yet, in an addendum, this examiner explained that these abnormalities "may or may not be the result of TBI" but nonetheless "were not inhibiting or impacting the [V]eteran in any way."  This examiner ultimately concluded that "[t]here is no evidence of a TBI disability."

In an effort to reconcile this evidence, the Veteran underwent additional VA TBI examination in December 2011.  The results from this examination are equivocal.  In the diagnosis section, in response to a question as to whether the Veteran has ever had a TBI or residuals, the examiner answered "Yes" and gave a date of diagnosis as 2004/2005 (page 2).  In particular, the examiner indicated that the criteria for mild TBI, as defined by the American College of Rehabilitation, were fulfilled for an IED event occurring in May 2005 (page 8).  The examiner also answered "Yes" as to whether the Veteran's history of injury and course of clinical symptoms was consistent with a diagnosis of TBI (page 5).  The examiner specifically noted that the Veteran demonstrated/reported persistent symptoms that can occur post-concussion such as headache, tinnitus, sensitivity to light or noise, fatigue, insomnia, balance difficulty, nausea, depression, irritability, anxiety, agitation, impulsivity, aggression, decreased memory, attention, concentration, processing speed, and executive function.  However, the examiner cautioned that many of these symptoms could also be associated with conditions such as chronic pain, depression and PTSD and exacerbated by medications or substance abuse such as alcohol. 

In Section II entitled "Assessment of cognitive impairment and other residuals of TBI," the examiner endorsed a selection for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family or other close relationships.  

In Section III entitled "Residuals," which requested an evaluation of any subjective, mental, physical or neurologic conditions related to TBI, the examiner stated "no specific residuals of TBI per General Medical eval."  With respect to the issue of functional impact, the examination report states as follows:

Do any of the Veteran's residual conditions attributable to a traumatic brain injury impact his or her ability to work?

[X] Yes	[  ] No

If yes, describe impact of each of the Veteran's residual conditions attributable to a traumatic brain injury, providing one or more examples: veteran without time lost from work in past year - please see psych and neuropsych evals and reports for further comments on occupational function.

A December 2011 psychiatric and neuropsychiatric evaluation provided an addendum opinion that it is most likely that the Veteran's complaints of inefficient cognitive functioning in day-to-day life were due to the negative impact of service-connected PTSD, and that his overall results were not consistent with the continuing impact of TBI.

The Board observes that VA defines TBI as a traumatically induced structural injury and/or physiological disruption of brain function as a result of an external force that is indicated by new onset or worsening of at least one of the following clinical signs, immediately following the event:  

1. Any period of loss of or a decreased level of consciousness;
2. Any loss of memory for events immediately before or after the injury;
3. Any alteration in mental state at the time of the injury (confusion, disorientation, slowed thinking, etc.);
4. Neurological deficits (weakness, loss of balance, change in vision, praxis, paresis/plegia, sensory loss, aphasia, etc.) that may or may not be transient; or
5. Intracranial lesion.

See VBA Training Letter 09-01, entitled Evaluating Residuals of Traumatic Brain Injury under Revised Criteria, dated January 12, 2009.

VBA's Training Letter also notes that the sequelae of TBI may or may not be permanent.  VA's Schedule of Ratings for TBI provides disability ratings of 0 percent, 10 percent, 40 percent, 70 percent and 100 percent depending upon severity.  See 38 C.F.R. § 4.124a, DC 8045.

In this case, the December 2011 VA examination report confirms that the Veteran meets the definition as having incurred a mild TBI as a result of an IED explosion in May 2005.  However, the extent and severity of those residuals, if any, are complicated with the co-existing service-connected PTSD.  This is a rating consideration which is not currently before the Board.  

Based upon the above, the Board concludes that the Veteran meets the criteria for establishing his entitlement to service connection for residuals of TBI as defined by VBA Training Letter 09-01.  The appropriate disability rating, if any, can be evaluated by the RO when assigning an initial disability rating and effective date of award.  See 38 C.F.R. § 4.124a, Note (1) (recognizing a potential overlap of manifestations of comorbid mental, neurologic or other physical disorder which can be either be separately evaluated when clearly separable, or assigned a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions).  The claim, therefore, is granted.

II.  Sleep apnea

The Veteran seeks to establish entitlement to service connection for obstructive sleep apnea as due to service-connected PTSD and/or cervical spine disability.  The record first reflects a diagnosis of obstructive sleep apnea in April 2008 manifested by a several month history of daytime somnolence, napping on weekends, falling asleep while driving, and witnessed apnea and snoring as well as leg jerks and kicking at night.

In February 2012, the Veteran was afforded VA examination to determine the nature and etiology of his sleep apnea.  At this time, the examiner elicited history from the Veteran and his spouse who alleged the onset of snoring with witnessed apneic events, as well as decreased restful sleep and some daytime sleepiness, following his deployment in 2005/2006.  The examiner provided opinion that the Veteran's sleep apnea had its onset prior to cervical spine surgery in 2007 and showed no worsening after the surgery.  Thus, the examiner concluded that the Veteran's cervical spine disability had not caused or aggravated sleep apnea.  In providing this opinion, the examiner commented as follows:

With regards to this veteran specifically, however, it is noted that this veteran's history suggests that he had the onset of symptoms consistent with obstructive sleep apnea prior to his 2007 anterior cervical spine fusion surgery.  This statement is based on review of the record as cited above which notes that veteran and veteran's wife had noted snoring and witnessed apneic events with decreased restful sleep and daytime sleepiness dating back to the time following his 2005-2006 deployment.

(emphasis added).

According to the February 2012 VA examiner opinion, the Veteran's sleep apnea had its onset following his 2005 deployment to Iraq.  This opinion is based upon the personal knowledge of both the Veteran and his wife regarding when his symptoms of snoring, apneic events, decreased restful sleep and daytime sleepiness occurred.  Clearly, the Veteran and his spouse are competent to describe these outwardly manifested symptoms.

The Veteran's STRs are negative for lay or medical evidence of obstructive sleep apnea.  However, the Board finds no significant evidence of record impeaching the veracity of the statements of the Veteran and his spouse describing his inservice symptoms other than the April 2008 medical report wherein the Veteran described a "several month" history of daytime somnolence.  This history, however, is very generalized and does not provide an in depth review of the onset of all obstructive sleep apnea symptoms.

It is a well-settled principle that VA has a duty to consider all potential theories of entitlement whether or not explicitly raised by a claimant.  See Douglas v. Derwinski, 2 Vet. App. 435 (1992) (evidence implicating military sun exposure as a cause of basal cell carcinoma raised a direct service connection even though appellant's contentions focused on ionizing radiation instead).  Here, the Veteran has raised a direct service connection incurrence theory based upon the onset of obstructive sleep apnea symptoms in service.  38 C.F.R. § 3.303(b).

Overall, the Board accepts as true the assertions of the Veteran and his spouse that his symptoms of snoring, apneic events, decreased restful sleep and daytime sleepiness first began in service.  Accordingly, based on this lay history and the February 2012 VA examiner opinion accepting this history as demonstrating obstructive sleep apnea, the Board finds that the criteria for establishing the Veteran's entitlement to service connection for obstructive sleep apnea have been met.  The claim, therefore, is granted.

III.  Left ear hearing loss.

The Veteran seeks to establish his entitlement to left ear hearing loss as due to noise exposure during active service.  Notably, the Veteran is currently service-connected for noise-induced right ear sensorineural hearing loss.  Thus, his exposure to acoustic trauma during service is not in dispute.  Additionally, a VA audiology examiner in October 2010 diagnosed the Veteran with mild to severe left ear sensorineural hearing loss from 4000 to 8000 Hz which is consistent with his military noise exposure.

However, the fact that the Veteran demonstrates decreased left ear hearing acuity due to military noise exposure, in and of itself, does not establish his entitlement to service connection for left ear hearing loss.  VA regulations specify that a certain level of decreased hearing acuity is necessary to establish a current disability for service connection purposes.  38 C.F.R. § 3.385.  VA only compensates a veteran for an "impairment in earning capacity resulting from such diseases and injuries and their residual conditions."  38 C.F.R. § 4.1.  VA has determined that a hearing loss at a frequency greater than 4000 Hz does not result in an impairment of earning capacity and, thus, does not constitute a disability for VA purposes.  See 55 Fed.Reg. 12,348 (Apr. 3, 1990) (notice of final rulemaking regarding 38 C.F.R. § 3.385).  The Court has upheld VA's interpretation of the definition of disability under 38 C.F.R. § 3.385 as a valid interpretation of VA's service connection statutes.  Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007).

The most recent audiometric evaluation, a VA audiology examination in October 2010, measured left ear hearing acuity of 25, 15, 15, 15 and 35 decibels at 500, 1000, 2000, 3000 and 4000 Hz, respectively.  The Veteran had a left ear speech recognition score of 94 percent.  These results do not establish a left ear hearing loss disability per the standards of 38 C.F.R. § 3.385.

The Veteran served on active duty from February 1988 to July 1998 and from August 2004 to October 2005.  His audiometric examinations in November 1988, September 1991, October 1992, December 1996, February 1998, August 2004 and March 2005 do not reveal audiometric findings which meet the 38 C.F.R. § 3.385 definition of left ear hearing loss disability.  In January 1991, the Veteran was given a profile for left ear hearing loss as a result of 40 decibel hearing acuity at 6000 Hz.  He was given an H2 disability profile in September 2005 due to audiometric findings of 25, 20, 20, 20, 35, 65 and 60 at 500, 1000, 2000, 3000, 4000, 6000 and 8000 Hz, respectively.  The Veteran was diagnosed with mild to moderate sensorineural hearing loss above 3000 Hz.

The postservice record includes a private audiogram in December 2005, the results of which are in graphical form only.  The results are clear to a layperson, however, that left ear auditory thresholds are not 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, or that the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater.  The Veteran had a speech recognition score of 100 percent.  While the word list is unknown, such results do not warrant any further inquiry as to the word list used given the 100 percent score. 

The record also includes audiometric examinations in September 2007 and March 2008.  These results also do not establish a left ear hearing loss disability per the standards of 38 C.F.R. § 3.385.

Given the above, the Board must deny the Veteran's claim of entitlement to service connection for left ear hearing loss as the Veteran does not manifest a left ear hearing loss disability per VA standards.  In so holding, the Board finds that the Veteran's report of decreased hearing acuity is credible and consistent with his audiometric findings as well as the diagnosis of mild to moderate sensorineural hearing loss above 3000 Hz.  It is also recognized that this decreased hearing acuity has been attributed to military noise exposure.

However, the Board places greater probative weight to the audiometric findings of record which do not reflect a current hearing loss disability in the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz, or by speech recognition using the Maryland CNC Test, as required by 38 C.F.R. § 3.385.  In a written presentation dated July 2008, the Veteran's representative argued that service connection for left ear hearing loss should be granted as "VA should be aware 65 is greater than 40" within the Arabic numeral system.  It appears to the Board that the Veteran's attorney is referencing audiometric results in frequencies greater than 4000 Hz which may not be considered for service connection purposes.  38 C.F.R. § 3.385; Palczewski, 21 Vet. App. at 179-80.  As the preponderance is against the claim, the claim must be denied.  The benefit of the doubt rule, therefore, does not apply.  Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

The Board encourages the Veteran to reapply for service-connected benefits when his audiometric findings meet the criteria for left ear hearing loss per the standards of 38 C.F.R. § 3.385.

Disability rating claims

I.  PTSD.

In pertinent part, the Veteran served in Al Asad, Iraq from October 2004 to September 2005.  On his post-deployment questionnaire, he endorsed symptoms of being constantly on guard, watchful or easily startled as well as feeling numb or detached from others, activities or his surroundings.

Postservice, the record reflects that the Veteran presented to his private physician in November 2005 with complaint of decreased sleep, fatigue and mood swings.  He was prescribed Cymbalta 30 mg. daily for his fatigue and mood swings, and Lunesta for insomnia.  The Veteran indicated seeing a counselor for PTSD but "not having a lot of difficulty with posttraumatic stress disorder."  In November 2006, he generally reported that Cymbalta was "working well for him."  In July 2007, his prescription of Cymbalta was increased from 30 mg to 60 mg in July 2007 per his request.

A November 2007 VA TBI consultation included the Veteran's report of irritability and memory problems to the extent where he had to write everything down.  A November 2007 VA primary care outpatient note noted a negative depression screen, but a positive PTSD screen including avoidance of reminders, hypervigilance and feelings of detachment.  The Veteran reported some marital discord and planned to obtain marital counseling.

On VA PTSD examination in December 2007, the Veteran generally described a tendency to isolate himself and retreat from social relationships.  He had limited social contacts with very few friends.  He otherwise described keeping people at a distance, and compartmentalizing himself and distancing himself emotionally.  He tended to spend time at home with his family.  He had no leisure activities or hobbies.  He denied a history of suicide attempts, violence, or assaultiveness.  He had an 11-year marriage which ended about the time that he left active duty.  He had been married for three years with one biological child, and had a 9-year old daughter from his current spouse's first marriage.  He was working with the National Guard.  His current treatment consisted of Cymbalta, Zolpidem, and individual psychotherapy with a private psychologist.  The effectiveness of therapy was described as "good."  He had no problematic effects due to alcohol or other substance abuse.

On examination, the Veteran presented as clean, appropriately dressed, and casually dressed.  Psychomotor activity, thought process and thought content were unremarkable.  He interpreted proverbs appropriately.  Remote, recent and immediate memory were normal.  His attitude towards the examiner was cooperative, friendly, relaxed and attentive.  His affect was appropriate and full.  Mood was described as good.  Attention was intact, and he was oriented to person, time and place.  There were no delusions.  He understood the outcomes of behavior, and understood that he had a problem.  His intelligence was above average.  The Veteran had sleep impairment for which he took Zolpidem.  He was also undergoing evaluation for sleep apnea.  There were no hallucinations, inappropriate behavior, panic attacks, homicidal thoughts, suicidal thoughts, or episodes of violence.  He had good impulse control.  The examiner commented that the Veteran's PTSD did not cause problems in activities of daily living.  The examiner summarized the frequency, severity and duration of the Veteran's PTSD symptoms as follows:

Intrusive recollections occur about once a week.  They have gradually gotten better in the two years since he has returned from deployment.  His wife reports he is restless at night but he does not recall dreams.  He has not had flashbacks.  About once a week something will remind him of the time in Iraq and he feels agitated and irritable.  He has not had physiologic reactivity.

He is able to suppress thoughts and feelings effectively.  He has not had to avoid reminders such as the guard.  He transferred to the active guard which was a good move for him.  He continues to work full time as a Federal Technician with the guard.  He has difficulty remembering much of what happened.  Other people in his unit were there remind him of things he cannot remember.  Much of the time his interests have been constricted.  He has essentially no interests since he returned from deployment.  His wife is aware of that and trying to get him to do more things.  Much of the time he feels cut off and distant from other people.  He has experienced emotional numbing and feeling distant from other people which is present some of the time.  He has been able to plan effectively for the future.  

He is able to sleep at night but does not feel rested the next day.  His wife has pointed out his increased level of irritability since being on deployment.  They are currently [be]ing seen in counseling with a therapist who is providing his PTSD treatment.  There are some times that he has difficulty concentrating and needs extra calendars and reminders.  He thought this might be an evaluation for traumatic brain injury but I explained that it was not.  He reports that he has an appointment in grand island which sounds to me like the screening evaluation for TBI.  He is not troubled with hypervigilance and has not noted increased startle response.  

Overall the PTSD symptoms are in the mild range.

In summary, the VA examiner provided a diagnosis of PTSD and assigned a GAF score of 65.  It was explained that the Veteran's symptoms were in the mild range having a good response to treatment.  His primary area of impairment involved interpersonal relationships, and he was employed full-time.  His condition had gradually improved over the past two years.  The examiner indicated that the Veteran was able to function fully occupationally with a present level of symptoms which might cause some decrease deficiency and ability to perform occupational tasks only during periods of significant stress.  The Veteran had experienced some decrease in his interpersonal relationships as well as some decrease in recreational activity.

By means of a rating decision dated February 2008, the RO granted service connection for PTSD and assigned an initial 10 percent evaluation effective to the date of claim, October 2, 2007.

A February 2008 post-deployment questionnaire included the Veteran's report of problems sleeping or feeling tired after sleeping, difficulty remembering, and increased irritability.

In March 2008, the Veteran underwent a private neuropsychology screening report for an evaluation of potential TBI residuals.  At the examination, the Veteran presented as casually dressed with his personal grooming and attire well-kempt.  He maintained a comfortable degree of eye-contact during conversation.  He described PTSD symptoms as sleep difficulty, notable decreased energy, decreased interest, increased isolation, impotence problems, and irritability.  The examiner observed that the Veteran had a somewhat emotionally flat or depressed demeanor.  However, he was alert and oriented to person, place, time and purpose of the evaluation.  He demonstrated appropriate affect.  His speech was clear and normal in prosody, rate and volume with no evidence of expressive or receptive deficiencies.  He appeared to comprehend all directions given, and did not require explication or repetition of any instructions.  He did not manifest any signs of significantly disordered, disorganized, or psychotic thought processes.  He gross and fine motor skills, vision and hearing were all adequate for testing purposes.  On neuropsychological testing, the Veteran endorsed depression of a severe degree, mild anxiety symptoms and moderate symptoms involving fear of losing control and feeling hot.  His neuropsychological test performances ranged from the average to superior range while his memory performances consistently fell in the average range.  The Veteran did show some cognitive inefficiency in learning novel material at times, but not consistently, and it was noted that the Veteran certainly described cognitive problems in real life.  It was recommended that the Veteran's PTSD be aggressively treated due to the apparent severity of his depression. 

Private medical records in April and May 2008 diagnosed the Veteran with obstructive sleep apnea and periodic limb disorder.  The Veteran's symptoms included daytime somnolence.  A mental status evaluation noted the Veteran to be awake, alert, and attentive with intact receptive and expressive language skills.  A polysomnogram report noted that the Veteran reported PTSD-type symptoms at night, but did not elaborate as to the symptoms reported.

A July 2008 VA TBI examination included the Veteran's report of moderate memory impairment, slowness of thought, and difficulty concentrating.  He had mild fatigue likely due to sleep apnea.  Examination demonstrated no signs of speech impairment.  The examiner provided opinion that the Veteran had TBI residuals which was causing some cerebral/cognitive dysfunction, including memory issues.

In an addendum dated July 2008, the December 2007 VA examiner reviewed the results from the TBI evaluations, and attributed the Veteran's cognitive problems to his PTSD diagnosis. 

A November 2008 VA clinical record included the Veteran's report that his PTSD was stable.  He denied feeling hopeless about the present or future.  The Veteran was oriented appropriately in three spheres, and his affect appeared normal.  In November 2009, the Veteran had a positive PTSD screen reporting being constantly on guard, watchful or easily startled as well as feeling numb or detached from others, activities of his surroundings.

The Veteran underwent additional VA PTSD examination in October 2010.  He reported not receiving any PTSD treatment in the last two years.  He denied any highs or lows, but felt that his medications had limited his joy and happy feelings.  He reported that his depressive symptoms were no longer present when taking anti-depressant medications, but that attempts to discontinue the medications caused irritability problems.  He described being able to interact appropriately socially at work, and that he was an elder in his church.  He preferred to have his own private time, and did not actively seek out social relationships outside of church and work.  He considered work one of his major interests, and was looking forward to hunting season.  He denied suicide attempts, violence, assaultiveness or issues associated with alcohol or other substance use.  He was employed full-time as a federal military technician, and had lost a few days of work in the last 12 month period due to appointments.

On mental status examination, the Veteran appeared clean and appropriately dressed.  Psychomotor activity, thought process and thought content were unremarkable.  Speech was spontaneous and clear.  His attitude towards the examiner was cooperative, friendly, relaxed and attentive.  Affect was appropriate, and mood was good.  Attention was intact.  The Veteran was oriented to person, place and time.  There were no delusions, hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal thoughts, suicidal thoughts, or episodes of violence.  His impulse control was good.  The Veteran understood the outcome of behavior, and that he had a problem.  He was able to maintain minimum personal hygiene, and there were no problems with activities of daily living.  Remote, recent and immediate memory were normal.  The Veteran reported PTSD symptoms of intrusive recollections, avoidance and arousal.  

The examiner summarized the frequency, severity and duration of PTSD symptoms as follows:

The daytime intrusive recollections are occurring infrequently.
Nightmares are not present.
Flashbacks have not occurred.
Psychological reactivity includes prostration and irritability and he gives an example of being very frustrated when the new recruits to the guard unit did not take the training seriously.
Physiologic reactivity has not been a problem.

There is avoidance of talking about his combat experiences and avoidance of places that remind him of the [sic] although he is able to maintain his full time job in the National Guard unit.
Amnesia has not been a problem.
There continues to be constriction in interest, the avoidance of close relationships and the presence of emotional numbing continue.
He does have a sense of future.

There is a sleep disturbance but that has been diagnosed as sleep apnea and being treated.
Irritability is fairly well controlled on medication and when he tried to stop the medication irritability has come back.
Concentration at times is difficult for him but has not cause[d] major problems in the work environment.
Hypervigilance continues to be present and he continues to sit with his back to the wall facing doorway whenever possible.
Start[le] response has shown some improvement but is still present.

In summary, the VA examiner diagnosed PTSD and assigned a GAF score of 62 which represented symptomatology for PTSD with associated depression was in the mild range.  It was noted that the Veteran's PTSD symptoms had constricted his ability to function more fully with his family and has caused decreased interest in socializing and, to some extent, recreational activities.  It was further opined that the Veteran's present PTSD symptoms have caused some transient decrease in work efficiency that has not affected his ability to maintain satisfactory performance as a Federal military technician.

In December 2011, the Veteran underwent extensive VA examination for evaluating his potential TBI residuals.  At his TBI examination, the Veteran endorsed symptoms which included fatigue of a very severe level with day naps after work and on weekends, but which did not usually interfere with daily activity; a severe degree of poor concentration, forgetfulness, decision-making difficulty, sleep difficulty getting 6-8 hours per night with medication but absent nightmares, and irritability; and a moderate degrees of increased appetite at night, slowed thinking, anxiety with a sense that thinking speed is increasing, depression, and poor frustration tolerance.  Overall, the Veteran described that his symptoms had moderately interfered with his relationships, concentrating at work, and socially dealing with other people.  

The TBI examiner indicated that the Veteran did demonstrate persistent symptoms which could occur post-concussion such as somatic complaints, depression, irritability, anxiety, agitation, impulsivity, and aggression as well as a decrease in memory, attention, concentration, processing speed and executive function.  However, it was noted that these symptoms could also be associated and/or overlapping with issues such as chronic pain, depression and PTSD.  It was indicated that the Veteran has subjective symptoms which did not interfere with work, instrumental activities of daily living, work, family or other close relationships.  For example, it was indicated that the Veteran had mild anxiety.  It was also indicated that the Veteran did not lose any time off from work due to his symptoms.

On neurology examination, the Veteran reported being involved with church by attending two or three days a week.  He felt that his core relationship with his spouse was good, but that he had no sex drive and his wife described him as being withdrawn or detached from his family.  He sat at his computer at night rather than interact with his family.  He worked full-time with the National Guard with a typical work day from 7 to 5:30.  He was a ranger manager and State marksmanship coordinator with duties that included checking out weapons qualifications, visual simulators for training, and planning and designing ranges to make sure they met Army standards.  He got along with his co-workers "well."  He was currently seeing a private physician for outpatient psychiatric medication management which included Effexor, Adderall and Mirapex for restless leg syndrome.  He denied legal problems or substance abuse.

The Veteran reported that his energy level dragged all day long, and that he continuously felt tired.  He had some relief of symptoms with taking Adderall.  He read books for a couple of hours, and used the computer for a few hours as well.  He did not like interacting with his family, which were brief with him being subjectively distracted.  He ate one large meal at dinner time, and may have a microwave meal at work as well as a candy bar.  He drank coffee all day.  He went to bed at 10:30 after watching the news, and read for 1/2 hour.  He slept until the alarm went off in the morning.  The Veteran described feeling numb, but denied feeling hopeless or helpless.  He generally stated that nothing made him happy, mad or sad.  He was not suicidal or homicidal.  He denied hallucinations or delusions.

The Veteran reported memory difficulties with daily activities, and relied heavily with Post-It notes and his Outlook calendar.  He tried to structure his home so that items were in the "right" spot, and that he often forgot them if not properly located.  He did not have this issue at work as he was able to play to his strengths when picking assignments.  He had not received any bad work reviews.  The Veteran also reported a lack of interpersonal relationships.  He described being happily married and enjoying his relationships with his children, but he did not "chat" with community members.  He did talk to co-workers, but not outside of the workplace.  He preferred to stay at home except for attending church and church-related events.  He did not feel irritable, but was told by others that he was irritable.  He was often hypervigilant, including the need to sit facing the door.

The Veteran described no significant problems involving empathy, undue suspiciousness or hostility, extreme moodiness and impulsivity, unusually elevated mood or heightened activity, marked anxiety, or problematic behaviors used to manage anxiety.  He had some difficulties associated with mild or fleeting depressive symptoms, and some loss of interest in interpersonal and social activities.

With regards to his current level of stress and social support, the Veteran reported that he is currently experiencing lower stress compared to the average adult.  However, the Veteran reported that his level of social support was also lower than that of the average adult, which may indicate the Veteran had less protective factors to help him combat stress or other difficulties. 

The results of the Veteran's neuropsychological testing were summarized as follows:

Overall, the Veteran's pattern of neuropsychological functioning as measured by this neuropsychological test battery indicates he is performing within the average range or above with very limited exceptions.

Intellectual functioning was estimated to be in the above average range.  Motor functioning was within the average range with no evidence of a lateralized pattern.  Language was above average.  Attention was at least average.  Memory was at least average for verbal and non-verbal (visual) information, with very limited exception.  Executive functioning tasks were at least average on all but one measure.  The one notable exception was his mildly impaired performance on WCST-128; potential reasons for this level of performance include over-thinking the task, particularly in light of his other good performance on executive functioning tasks throughout the assessment, but other factors have not been ruled out.

The Veteran is quite bright.  However, it is well-known that psychiatric symptoms can have a profound, yet reversible, effect on cognitive efficiencies.  Current cognitive performance does not indicate neurocognitive deficits consistent with continuing impact of mTBI, although his difficulties on the WCST may require further inquiry.  It is my opinion that it is most likely that the symptoms the Veteran describes related to inefficient cognitive functioning he experiences in his day-to-day life are due to the negative impact of psychiatric symptoms.  It is anticipated that when these symptoms improve then the Veteran's overall functioning will improve as well.  If they do not improve, he can be rereffered for follow-up assessment.

The examiner provided a diagnosis of chronic PTSD, and assigned a GAF score of 60.  The examiner otherwise referred to the Veteran has manifesting sub-threshold PTSD.

VA clinical records in April 2012 include the Veteran's perception that his overall cognitive functioning was lower than prior to his TBI.  He stated that he was able to function well at because it is what he has always done and that he was able to choose the assignments that he could complete easier and without stress.  His spouse reported that the Veteran was not the same person since he suffered his TBIs.  At this time, the Veteran reported difficulty sleeping with dreams/nightmares that were military related.  He had a very small group of people that he saw, and did not attend social events.  He only drove to work, and he let his wife drive otherwise.  He continued to experience hyperarousal and hypervigilance.  His wife described him as scanning the road way for hazards, providing an example that he would pull away if seeing a bag of trash on the roadway.  He also would not go anywhere if he could not face the doorway with his back to the wall.  He checked the doors and windows each night prior to bedtime.   Without his medications, his mind would race with dreams/nightmares.  He had physical reactions when the running the IED simulator.  He also felt irritable with people to include troops that did not take their training seriously.  He was critical of the leadership that he is seeing now especially the combat officers.  The Veteran and his spouse had been undergoing marital therapy for the past three years and his wife appeared to have pretty much given up on their marriage.  It was noted that she was frustrated with the Veteran's PTSD symptoms and his withdrawal from her mentally and physically.  The Veteran felt that he was being a good husband by providing financial support, but was aware of his numbness of feeling and lack of intimacy. 

The Veteran also reported great difficulty with memory by forgetting anything he did not do in a routine manner.  His wife reported having to meet him at corners of the road due to forgetting identification or keys "about twice a week."  

On mental status examination, the Veteran was alert, attentive and oriented x3.  He was cooperative and reasonable with appropriate grooming.  Speech was normal in normal rate and rhythm.  Language was intact.  Mood was anxious and depressed.  There were no perceptual disturbances.  Thought process was normal and coherent with no unusual thought content.  There was no suicidal or violent ideation.  Insight was good.  Memory was intact, although there was no formal testing.  The examiner diagnosed chronic PTSD and assigned a GAF score of 58.

A May 2012 VA clinical record noted the Veteran's general report of doing "ok."  He reported having, at times, moodiness, lack of energy and motivation, and irritability.  He denied deepening depression or hopelessness.  He described his sleep as "good" with no nightmares.  The examiner noted that the Veteran was alert and oriented in three spheres, and in no acute distress.  A depression screen was positive with the Veteran reporting little interest or pleasure in doing things, and feeling down, depressed, or hopeless "[n]early every day."  He was referred for PTSD education classes.

VA clinical records in June 2012 include the Veteran's report of irritability, isolation from his family, sleep problems, dislike of crowds, and having a hard time being around a lot of people.  The Veteran reported high anxiety in most situations and was "definitely not who I used to be."  His moodiness, lack of energy and motivation had improved with taking Vanlafaxine.  He described as moderate having repeated disturbing memories, thoughts or images of past stressful events, repeated disturbing dreams, suddenly acting or feeling as if reliving the stressful experience, remembering past events, and concentration difficulties.  He reported as experiencing "quite a bit" feeling very upset when something reminded him of a past stressful experience, having physical reactions (e.g. heart pounding, trouble breathing, sweating), avoiding reminders, sleeping trouble, being superalert and easily startled, irritability or anger outbursts.  He had extreme problems with avoidance of thinking, talking or feeling past stressful experiences, loss of interest in activities, feeling distant or cut off, and feeling emotionally numb.  These problems made it very difficult for him to do his work, take care of things at home, or getting along with other people.

Otherwise, it was reported that the Veteran felt that most of the time he was either emotionally numb/removed or angry.  He would like to be able to trust others more easily, at least certain select people that he would like to experience a closer emotional connection.  He would like to experience more positive emotions, especially when it comes to spending time with his daughters (5 and 14), to be able to have fun with them, play with them.  He would also like to be able to go outdoors with children/family without anxiety, and to be able to join in with family experiences rather than feel as though he was "on the outside."  The Veteran reported that he did not venture out with his daughters to go to the pool, or for walks, or to kick a ball around.  He appeared to report feeling anxious outdoors.

On mental status examination, the Veteran appeared early for his appointment.  His grooming and hygiene were described as good.  His motor behavior was normal.  Eye contact was fair.  His facial expression was sad, and attitude was cooperative.  Mood was neutral and affect was constricted.  Speech was relevant and spontaneous.  Thought processes were logical and goal-directed.  Thought content was relevant.  Insight was adequate.  Sensorium was clear.  There was no suicidality or homicidality.  The examiner provided a diagnosis of PTSD, and assigned a GAF score of 55.

An August 2012 VA clinical record reflects that the Veteran arrived late after assisting with a rollover accident on the highway, and that he still had blood on his hands.  He acknowledged feeling shaky.  He processed this experience a bit with its relationship to some of his military experiences.  However, he engaged in avoidant internal and external techniques and expressed reluctance to discuss further.  The Veteran felt that his avoidant techniques (emotionally compartmentalizing, avoiding many activities/situations/discussions, working, emotionally distancing/numbing self) were working well for him, although he acknowledged that there were significant and unwanted tradeoffs in his personal life, especially with his daughters, by going this route.  The examiner shared with the Veteran his high level of PTSD symptoms that he reported last time and some of the outcomes that could be expected with a trauma focused treatment approach.  He was attending marital therapy.  On mental status examination, the Veteran's grooming and hygiene were described as good.  His motor behavior was tremulous.  Eye contact was good.  His facial expression was worried.  Attitude was avoidant.  Mood was anxious, and affect was appropriate/variable.  Speech was relevant and spontaneous.  Thought processes were logical and goal-directed.  Thought content was relevant.  Insight was adequate.  Sensorium was clear.  There was no suicidality or homicidality.  The examiner diagnosed PTSD and depression, and assigned a GAF score of 55.  

Applying the criteria to the facts of this case, the Board finds that the criteria for an initial rating greater than 10 percent for PTSD, for the time period prior to April 2012, have not been met.  In this respect, the credible lay and medical evidence demonstrates that the Veteran's PTSD was primarily manifested by mild and transient disturbances in mood, affect, motivation, social relations and subjective decrease in cognitive function which decreased work deficiency and occupational tasks only during periods of significant stress.

The Board further finds that, for the time period beginning in April 2012, the criteria for a 30 percent rating, but no higher, have been met.  In this respect, the credible lay and medical evidence demonstrates that the Veteran's PTSD has been primarily manifested by disturbances in mood, affect, motivation, social relations and subjective decrease in cognitive function which have resulted in occasional decrease in work efficiency and social relations.

At the outset, the Board observes that the Veteran has been awarded service connection for TBI residuals as a result of this decision.  For purposes of this decision, the Board considers all aspects of psychiatric and cognitive dysfunction in evaluating the Veteran's PTSD disability which, by all medical accounts, is the predominant aspect of impairment in this case.  The Veteran may seek a higher rating based upon TBI residuals if he so wishes, after RO assignment of an initial rating.

For the time period prior to April 2012, the Veteran clearly manifested disturbance of mood, affect, sleep impairment and subjective memory loss which are listed as examples supporting a 30 percent rating.  Disturbances of affect, motivation and mood are also listed as examples supporting a 50 percent rating.  The Veteran reports cognitive dysfunction manifested by slowed thinking and forgetting the location of items and directions.  His spouse reports hyperarousal to the extent that he changes his direction when faced with strange items left on the road.  These items are also listed as examples which could potentially support a 30 or 50 percent rating under DC 9411.

The Veteran has routinely denied suspiciousness and panic attacks (weekly or less often) which are also listed as examples supporting a 30 percent rating.  The lay and medical evidence unequivocally demonstrates no significant impairment of speech or thought content, neglect of personal hygiene, suicidal or homicidal ideation, near-continuous panic or depression affecting the ability to function independently, impaired impulse control or spatial disorientation, which are listed as examples supporting a rating greater than 10 percent.

Thus, the Veteran demonstrates some examples of disability which could support a 30 or 50 percent rating.  But, of course, the Board must look beyond the symptoms listed in VA's general rating formula for mental disorders to determine the appropriate rating in this case.  Mauerhan, 16 Vet. App. 436 (2002).  In particular, the Board must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, and their overall impact upon his occupational and social functioning.  Id.  See 38 C.F.R. § 4.126.

The Veteran has continually denied that his overall psychiatric impairment has resulted in any significant occupational impairment.  He has worked full-time for the entire appeal period in a position requiring managerial and planning skills.  He has not received any bad reviews, has only missed work due to appointments and not exacerbations of disability, and has described effective relationships with co-workers in the work environment.  Thus, from an occupational perspective, the Veteran's own testimony establishes that his PTSD has not resulted in any significant occupational impairment.

The Veteran has credibly reported impairment of mood, affect and motivation which has interfered with his social relations.  These include a constriction of interests with social interaction limited to church functions and his family.  The Veteran and his spouse report marital discord which they have addressed through marital counseling, and the Veteran tends to isolate himself even at home.  Nonetheless, the Veteran has described himself as actively described in church events which demonstrates effective social relationships.

The Veteran also reports subjective cognitive dysfunction self-described as being "moderate" in degree in July 2008.  However, VA examination in December 2007, the March 2008 VA TBI examination, the July 2008 VA TBI examination, the October 2010 VA examination and the December 2011 VA examination reveal no significant impairment of intellectual functioning, motor functioning, language skills, memory or executive functioning tasks although the Veteran has been described as demonstrating some inefficient cognitive functioning.

In December 2007, the VA C&P examiner assessed the Veteran has having PTSD symptoms in the "mild" range with an overall psychological, social, and occupational functioning as fully occupational with symptoms which might cause some decreased deficiency and ability to perform occupational tasks only periods of significant stress, and some decrease in interpersonal relationships and recreational activity.  This assessment was otherwise expressed in a GAF score of 65, which was based upon examination of the Veteran in light of his reported symptomatology.

Similarly, a VA C&P examiner in December 2010 described the Veteran has having PTSD with associated depression in the "mild" range with an overall psychological, social, and occupational functioning as causing some transient decrease in work efficiency that has not affected satisfactory performance, and a constriction to function more fully socially and recreationally.  This assessment was otherwise expressed in a GAF score of 62, which was based upon examination of the Veteran in light of his reported symptomatology.

Additionally, VA examination in December 2011 assigned a GAF score of 60, which is consistent with social, occupational, or school functioning approaching moderate difficulty.

On the other hand, psychological testing in March 2008 was interpreted as showing that the Veteran reported depression in the severe range.

In totality, the Board finds that the credible lay and medical evidence prior to April 2012 demonstrates that the entirety of the Veteran's PTSD symptoms resulted in no significant occupational impairment, and mild to moderate social impairment.  This finding is fully consistent with the level of occupational and social impairment contemplated by the criteria for a 10 percent rating under DC 9411.  It is also fully consistent with the December 2007 and October 2010 VA C&P examiner assessments of the Veteran's overall psychological, social, and occupational functioning - being fully functional occupationally with symptoms which might cause some decreased deficiency and ability to perform occupational tasks only periods of significant stress, and some decrease in interpersonal relationships and recreational activity.

In so finding, the Board finds that the reports of the Veteran and his spouse regarding the Veteran's PTSD symptomatology are credible and consistent with the entire evidentiary record.  The evaluation of the overall occupational and social impact due to PTSD, however, is more competently addressed by the findings of trained and qualified VA examiners who have greater expertise and training than the Veteran and his spouse on matters regarding the extent of impairment due to psychiatric disability.  Notably, these examiners expressed these opinions based upon acceptance of the lay history provided, mental status examination, psychological testing, and neuropsychiatric testing which has been quite extensive in this case.  

The Board also observes that the Veteran demonstrates some aspects of disability which serve as examples for 30 and 50 percent ratings under DC 9411.  Additionally, the Board has considered the fact that psychological testing in March 2008 was interpreted as showing that the Veteran reported severe depression, and that VA examination in December 2011 assigned a GAF score of 60 which was 5 points lower than the initial GAF score assigned in 2007.

On this record, prior to April 2012, the Board does not appreciate any significant increased PTSD symptomatology being reported by the Veteran or the various physicians.  There is a difference in the use of medical terminology which, as a whole, the Board finds that the descriptions of the VA examiners in 2007 and 2010 are more consistent with the credible lay and medical evidence of record.  

The Board also observes that the Veteran's representative has argued that a GAF score of 65 is "highly probative of the appropriateness of at least a 30 percent rating," particularly when applying the benefit of the doubt rule.  The Board does not find any clear cut factual or legal basis to support this assertion.  Rather, the VA examiners in 2007 and 2010, who provided GAF scores of 65 and 62, specifically explained that their GAF score represented symptomatology which resulted in no occupational impairment except for a decreased efficiency only during significant periods of stress, and some decrease in interpersonal relationships and recreational activity.  This medical opinion is closely aligned with the criteria for a 10 percent rating under DC 9411 - occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.

In summary, the Board finds that a preponderance of the evidence is against a rating greater than 10 percent for the Veteran's PTSD for any time prior to April 2012.  As such, the benefit of the doubt rule is not for application.  Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001).

With respect to the time period beginning in April 2012, the Board is of the opinion that the Veteran demonstrated a factually ascertainable increase of symptomatology to warrant a higher 30 percent rating.  The Veteran reported nightmares which he previously denied.  The Veteran and his spouse described hyperarousal and hypervigilance symptoms to an extent not previously disclosed.  Their marital relationship had deteriorated to the point that his spouse reported to have basically given up on the marriage.  A depression screen the next month recorded his complaint of feeling down, depressed or hopeless "nearly every day."  A VA examiner commented in August 2012 that the Veteran had demonstrated a "high level" of PTSD symptoms.

The reported symptomatology by the Veteran and his spouse is captured by GAF scores of 58 and 55, which was now more closer to a finding of moderate symptoms or moderate difficulty in social, occupational, or school functioning trending towards serious.  Resolving reasonable doubt in favor of the Veteran, and applying the approximating principles of 38 C.F.R. § 4.7, the Board finds that the criteria for a 30 percent rating have been met effective April 2012.

However, the Board cannot find any factual basis to ascertain that the Veteran's symptoms increased in severity to the 30 percent level prior to April 2012.  In this respect, the increased symptomatology is first reported in clinical records dated in April 2012, and the Board can find no description by either the Veteran or his spouse which reasonably places the onset of these symptoms to particular event or earlier period of time.

Additionally, the Board finds that the preponderance of the evidence is against a rating greater than 30 percent for any time during the appeal period.  In this respect, the lay and medical evidence still demonstrated the absence of suspiciousness, panic attacks, impairment of speech or thought content, neglect of personal hygiene, suicidal or homicidal ideation, speech impairment, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, or spatial disorientation.

In April 2012, the Veteran reported that he was still able to function well occupationally.  Thus, the Veteran continued to experience no significant impairment of occupational capacity.

The description of symptomatology by the Veteran and his spouse clearly describe a greater frequency and severity of PTSD symptomatology which was causing additional impairment of social functioning, particularly with his spouse and daughters.  This increased social impairment is reflected in the assignment of a 30 percent rating.  Yet, the GAF score of 55 evaluates an overall psychological, social, and occupational functioning that is intermediate between moderate and serious in degree.

In totality, the Board finds that the Veteran's overall PTSD symptomatology falls well short of resulting in occupational and social impairment with reduced reliability and productivity given the absence of any significant impairment of speech, panic attacks, difficulty in understanding complex commands, memory, judgment, abstract thinking or difficulty in establishing and maintaining effective work relationships.

In so deciding, the Board again finds that the reports of the Veteran and his spouse regarding the Veteran's PTSD symptomatology are credible and consistent with the entire evidentiary record.  The increased rating is largely based upon the report of increased symptomatology by the Veteran and his spouse.  The evaluation of his overall occupational and social impact due to PTSD, however, is more competently addressed by the findings of trained and qualified VA examiners who have greater expertise and training than the Veteran and the spouse on matters regarding the extent of impairment due to psychiatric disability.  Notably, the mental status examinations showed no appreciable disturbance of hygiene, motor behavior, speech, thought content, thought process, sensorium, insight or judgment.

The Board observes that the August 2012 mental status examination did describe tremulous motor behavior, but this must be viewed in the context that the Veteran arrived at examination with blood still on his hands after assisting in a motor vehicle accident.  This would seem a reasonable transient finding given the circumstances.  

In summary, the Board finds that a preponderance of the evidence is against a rating greater than 30 percent for the Veteran's PTSD for any time since April 2012.  As such, the benefit of the doubt rule is not for application.  Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001).

II.  Left ankle.

Historically, the Veteran had a history of left ankle sprains/inversion injuries during his active military service.  An x-ray examination of the left ankle in November 1991 was interpreted as showing degenerative changes along the medial left ankle joint.  The Veteran was diagnosed with a Grade II left ankle sprain in May 1992.

The Veteran submitted his service connection claim for left ankle disability in November 2007.  At that time, he reported left ankle symptoms of sharp ankle pain when crossing his legs, and occasional instances of rotation with stumbling.

On VA examination in March 2008, the Veteran described his left ankle as weak and prone to getting twisted.  He otherwise described his left ankle as easily rolled with multiple sprains.  He had infrequent ankle pain and swelling which occurred only with sprains.  He denied any activity limitations.  On examination, the examiner found no functional limitations to standing or walking.  The Veteran did not use an assistive ambulatory aid.  There were no symptoms of deformity, give-way, instability, pain, stiffness, weakness, dislocation or subluxation, locking, effusion, inflammation or flare-ups of joint disease.  The Veteran walked with a normal gait absent evidence of abnormal weight-bearing.  The examiner indicated that the "right" ankle had active and passive dorsiflexion from 0 to 20 degrees without pain or additional loss of motion (LOM) on repetitive use.  There was active and passive plantar flexion from 0 to 45 degrees without pain or additional LOM on repetitive use.  There was no instability, tendon abnormality or angulation.  X-ray examination of the left ankle was interpreted as "normal."  The examiner diagnosed "right" ankle musculoligamentous strain which had no significant effects on occupational or daily activities.

Private medical records in April 2008 generally observed that the Veteran had a steady gait.

In an addendum dated June 2008, the March 2008 VA examiner clarified that all findings in March 2008 pertained to the left ankle.

By means of a rating decision dated June 2008, the RO granted service connection for musculoligamentous strain of the left ankle and assigned an initial noncompensable evaluation effective to the date of claim, December 11, 2007.

A July 2008 VA TBI examination observed that the Veteran did not have difficulty with gait.  A November 2008 VA clinical record generally noted that the Veteran's muscle bulk and tone were adequate for ambulation and activities of daily living.

The Veteran underwent additional VA examination in October 2010.  At that time, the Veteran reported persistent left ankle pain, some instability, weakness, and some clicking and popping with range of motion.  He described his left ankle as rolling easily, but he did not describe specific recurrent flare-ups unless he completely strained or rolled the ankle.  At those times, the Veteran experienced pain, swelling, and weight-bearing difficulty which he treated with rest, elevation and over-the-counter medication.  He had not lost any time from work or experienced any periods of incapacity.  He typically did not use any sort of brace or wrap, but often wore lace-up boots which provided some support.  He did not report any functional limitations to standing or walking as a direct result of his left ankle disability.

On examination, the examiner found no significant marked or moderate deformity of the os calcis.  There was no ankylosis of the left ankle joint.  There were no constitutional symptoms of arthritis, or incapacitating episodes of arthritis.  There were no functional limitations to standing or walking.  Weight-bearing was normal without evidence of abnormal weight-bearing.  The left ankle demonstrated dorsiflexion from 0 to 20 degrees with tenderness beginning at 15 degrees, plantar flexion from 0 to 45 degrees with tenderness beginning at 40 degrees, eversion from 0 to 20 degrees with tenderness beginning at 15 degrees, and inversion from 0 to 30 degrees with tenderness beginning at 25 degrees.  Motor examination of the ankles showed active movement against full resistance.  The examiner found some increase in pain without additional weakness, excess fatigability, incoordination, lack of endurance, or additional LOM with repetitive use.  The examiner also indicated that it could not be expressed, without resorting to mere speculation, any additional limitation due to repetitive use during a flare-up.  X-ray examination of the left ankle was interpreted as normal.

The examiner diagnosed left ankle strain with laxity.  The examiner indicated that this disability had no significant effects on the Veteran's usual occupation or activities such as shopping, traveling, feeding, bathing, dressing, toileting, grooming and driving, had mild effects on activities such as chores, exercise and recreation, and had moderate effects on sports.

A December 2011 VA TBI examination found that the Veteran's gait was steady and normal in pace and quality.  He was able to turn, walk on toes and on heels and complete tandem walking.  He was able to complete single leg standing bilaterally and could perform a small crouch and recover.  The Veteran was also observed to move smoothly and unguardedly with no losses of balance despite turns and distractions in the clinic area.  Coordination was within functional limits (WFL).

An April 2012 VA clinical record noted that the Veteran did not use a mobility device to ambulate, and walked without hesitation or loss.  He had a recent falling incident which was not further explained.

Applying the criteria to the facts of this case, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's service-connected left ankle disability for the entire appeal period.  In this respect, the lay and medical evidence demonstrates that the Veteran's left ankle disability results in painful motion, laxity and recurrent strains with objective periarticular pathology, but with less than marked motion loss even when considering functional limitation on use; there is no ankylosis.

With respect to current left ankle motion, VA examinations in March 2008 and October 2010 both found left ankle dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees.  This is considered normal ankle motion.  38 C.F.R. § 4.71a, Plate II.  The clinical records do not contain any specific findings of left ankle motion loss expressed in terms of degrees of lost motion.  These records generally observe that the Veteran did not demonstrate any gait abnormality.  Thus, the Veteran has demonstrated normal left ankle motion according to the available clinical findings.

However, the Board observes that an x-ray examination of the left ankle during active service was interpreted as showing degenerative changes along the medial left ankle joint.  This finding cannot be ignored despite the fact that subsequent x-ray examinations were interpreted as normal. 

Additionally, the Veteran's report of recurrent ankle sprains is deemed credible and consistent with the entire evidentiary record.  VA examination in October 2010 demonstrated left ankle tenderness in all planes of motion with laxity.  In the opinion of the Board, the Veteran's left ankle disability symptomatology of painful motion, laxity and recurrent strains are supported by objective periarticular pathology and functional impairment which warrants at least a 10 percent rating under the principles enunciated in 38 C.F.R. §§ 4.40, 4.45 and 4.59.

The Board further finds that the criteria for a rating greater than 10 percent for the Veteran's left ankle disability have not been met for any time during the appeal period.  The Veteran has generally described a left ankle disability manifested by persistent left ankle pain, some instability and weakness with a tendency to roll and sprain, and some clicking and popping with range of motion.  He only reports flare-ups of disability with sprain injuries, at which time he experiences pain, swelling, and weight-bearing difficulty treated with rest, elevation and over-the-counter medication.  He has not lost any time from work, denies periods of incapacity, and does not report any significant limitations to standing or walking.

In this context, the Veteran has demonstrated no left ankle motion loss on range of motion testing.  On VA examinations in March 2008 and October 2010, the VA examiners found additional pain with repetitive testing, but no additional weakness, excess fatigability, incoordination, lack of endurance, or additional loss in range of motion.  In October 2010, the Veteran was found to demonstrate left ankle tenderness at 15 degrees of dorsiflexion, 40 degrees of plantar flexion, 15 degrees of eversion, and 25 degrees of inversion which is essentially near the end range of normal motion and not consistent with marked motion loss.  In October 2010, the VA examiner diagnosed left ankle strain with laxity and indicated that this disability had no significant effects on the Veteran's usual occupation or activities such as shopping, traveling, feeding, bathing, dressing, toileting, grooming and driving, had mild effects on activities such as chores, exercise, and recreation, and had moderate effects on sports.

Additionally, the VA clinical records contain several observations that the Veteran does not manifest any gait abnormality. 

Taking all of these factors into consideration, the Board finds that the Veteran's overall left ankle motion and functional impairment does not meet, or more closely approximate, the criteria for marked limitation of motion under DC 5271.  38 C.F.R. §§ 4.7, 4.40, 4.45.  The symptoms listed above have already been relied upon by the Board as supporting a 10 percent rating, and the overall severity of the Veteran's left ankle disability falls well short of more closely approximating marked limitation of ankle motion.

The Board further observes that the Veteran has full motion of his left ankle, and the VA examiner in October 2010 specifically found no ankylosis.  The Veteran does not argue otherwise.  There is clearly no lay or medical evidence of malunion of the os calcis or astragalus, or history of astragalectomy.  As such, consideration of a higher rating under the criteria of DCs 5270, 5273 and 5274 is not warranted.  The Board finds no further diagnostic codes applicable to the left ankle disability.

In so finding, the Board finds that the Veteran's report of left ankle symptoms and functional limitations is credible and consistent with the evidentiary record.  His reported complaints have been relied upon by the Board as supporting the 10 percent rating under 38 C.F.R. §§ 4.40, 4.45 and 4.59.  The Veteran himself has not described "marked" left ankle motion loss or ankylosis.  To the extent he believes that he is entitled to a higher rating still, the Board places greater probative weight to the findings of the VA examiners who have greater training and expertise than the Veteran in evaluating orthopedic disorders.  His spouse has not provided any relevant testimony on this matter.  There is no further doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).

Extraschedular consideration

To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1). 

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule.  See VAOPGCPREC 6-96 (Aug. 16, 1996).

In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability.  The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance.  However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

The Board finds that the schedular evaluations assigned for the Veteran's service-connected PTSD and left ankle disabilities reasonably describe his overall disability level and symptomatology.  With respect to the Veteran's PTSD symptomatology, the criteria of DC 9411 only provide examples which represent particular ratings, and the criteria of 38 C.F.R. § 4.126 and the holding of Mauerhan instruct that all symptoms must be taken into account.  The Board has evaluated all of the Veteran's symptoms, and assigned a higher rating effective April 2012 by application of the benefit of the doubt rule and the approximating principles of 38 C.F.R. § 4.7. 

With respect to the left ankle disability, the Veteran reports left ankle symptoms of persistent left ankle pain, some instability and weakness with a tendency to roll and sprain, and some clicking and popping with range of motion.  The 10 percent rating assigned by the Board under 38 C.F.R. §§ 4.40, 4.40 and 4.59 contemplates all of these symptoms.  The Board has specifically considered whether the Veteran's reported symptoms and functional impairments warrant a higher rating still based upon the application of diagnostic criteria specifically addressing those symptoms, or by application of 38 C.F.R. §§ 4.40 and 4.45 in considering whether these factors warranted a higher rating still.  

Notably, VA's Rating Schedule allows for higher schedular ratings for PTSD and left ankle disability, but the Veteran does not meet or more closely approximate the criteria for the next higher ratings.  In short, the Veteran does not demonstrate any aspects of these disabilities not contemplated by the schedular criteria as well as this rating decision.  As such, there is no basis to refer this case for extraschedular consideration. 


The Duty to Notify and the Duty to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). 

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

With respect to the TBI and obstructive sleep apnea claims, the Board has granted the benefits sought on appeal in full.  As such, the Board need not discuss any potential duty to notify or duty to assist errors with respect to these claims.

With respect to the left ear hearing loss claim, a pre-adjudicatory RO letter dated October 2007 fully satisfied the VCAA timing and content requirements.  In this respect, the Veteran was notified of the types of evidence and/or information deemed necessary to substantiate his claim, the relative duties on himself and VA in developing his claim, and the criteria for establishing an initial disability rating and effective date of award.

With respect to the PTSD and left ankle disability claims, the Veteran has appealed the initial ratings assigned following grants of service connection.  In Dingess, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied. 

VA has a duty to assist a claimant in the development of the claims.  This duty includes assisting the claimant in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed with respect to the claims being decided on appeal without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this case, the RO obtained all available STRs.  The RO has also obtained all available private and VA clinical records pertinent and relevant to the time period at issue.  The Veteran has worked full-time since his service separation, and the Board is unaware of any records in the possession of the Social Security Administration.

The Veteran was provided VA audiology examination in October 2010.  The audiometric testing demonstrated no current hearing loss disability per VA standards.  The Board has no reason to believe that the Veteran's hearing acuity has appreciably decreased since that examination.  As such, the Board finds that VA has satisfied its duty to obtain examination for this claim.

The Veteran was last afforded VA PTSD examination in October 2010.  The record has since been supplemented with the results from a December 2011 VA TBI examination and VA clinical records.  As held above, the Board finds that the Veteran's VA clinical records support a staged rating effective April 2012.  The Board finds that the mental status examination findings in the clinical setting contain all findings necessary to decide the claim, including potential entitlement to a higher rating still.  On the facts of this case, the Board finds that another formal VA examination would service no useful purpose.  As such, the Board finds that another examination is unnecessary to equitably decide the claim.

The Veteran was last afforded VA examination for his left ankle disability in October 2010.  This examination report contains all findings necessary to decide the claim in detail, including an evaluation as to whether there is additional loss of motion due to functional impairment.  Since this examination, the Board does not find that the lay or medical evidence suggests an increased severity of symptoms involving the left ankle to the extent that a higher schedular rating may be possible.  Thus, there is no duty to provide further medical examination on this claim.  See VAOPGCPREC 11-95 (Apr. 7, 1995).

Overall, the Board finds that the evidence of record is sufficient to decide the claims being decided on appeal, and that there is no reasonable possibility that any further assistance would aid in substantiating these claims being decided on appeal.  Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).


ORDER

The claim of entitlement to service connection for residuals of TBI is granted.

The claim of entitlement to service connection for obstructive sleep apnea is granted.

The claim of entitlement to service connection for left ear hearing loss is denied.

An initial rating greater than 10 percent for PTSD is denied for the time period prior to April 2012, but a 30 percent rating is granted for the time period beginning in April 2012.

An initial 10 percent rating, and no higher, is granted for musculoligamentous strain of the left ankle, over the entire appeal period.



REMAND

In an original rating decision dated December 2011, the RO denied a claim of entitlement to service connection for hypertension.  In May 2012, the Veteran's representative filed with the RO a timely filed notice of disagreement (NOD) with this determination, but the RO has not had the opportunity to issue a Statement of the Case (SOC).  This issue is remanded to the RO for issuance of an SOC, and is listed on the title page for procedural purposes only.  Manlincon v. West, 12 Vet. App. 238 (1999) (the filing of an NOD initiates appellate review which requires VA to furnish the claimant an SOC).

The Veteran seeks to establish his entitlement to service connection for hypertension, claimed as secondary to service-connected PTSD and/or medications used to treat service-connected PTSD.  In October 2010, a VA examiner commented that the Veteran's erectile dysfunction may be attributable to medications used to treat his hypertension.  This opinion reasonably raises a potential service connection theory which is inextricably intertwined with the pending claim of service connection for hypertension.  As such, the Board defers consideration of the erectile dysfunction claim pending RO action on the hypertension claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other).

The Board also finds that additional medical opinion is necessary on the erectile dysfunction claim.  As held above, the Board has awarded service connection for TBI.  The December 2011 VA TBI examination report includes commentary that studies suggest that up to 30% of mild TBI patients may have a decrease in sex hormones, stress hormones and thyroid hormones among others.  The examiner suggested that the Veteran participate in a research project with the VA NWI which would include a special "stimulation" test involving administration of a hormone to make the growth hormone and stress hormones work.  Recent VA clinical records reflect that the Veteran is receiving testosterone injections.

Given the above, the Veteran should be afforded additional examination to determine whether his service-connected TBI has caused or aggravated his erectile dysfunction.

The Veteran also seeks a higher initial rating for service-connected cervical spine disability.  On October 30, 2007, he underwent anterior cervical diskectomy at C6-C7, anterior cervical body arthrodesis at C6-C7, anterior instrumentation utilizing the EBI VueLok plate at C6-C7, and use of structural allograft for spinal arthrodesis.  One of his pre-operative symptoms involved radiculopathy of the right upper extremity.

On VA examination in October 2010, the Veteran reported that his neck surgery helped relieve the issue of radiculopathy in his right upper extremity.  Physical examination of the right upper extremity was essentially normal with the exception of a hypoactive reflex of the right biceps.  A December 2011 VA TBI examination report reflects the Veteran's complaint of numbness located in the ring and small fingers and the ulnar forearm, right greater than left.  He described this impairment as "severe."  The TBI examination report reflects an assessment that these complaints were likely positional. 

VA's rating schedule reflects that intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  See 38 C.F.R. § 4.71a, DC 5243.  The Board requires additional examination to clarify whether the Veteran manifests any chronic neurologic manifestations of cervical spine IVDS.

As the record reflects potential impairment of the right upper extremity due to IVDS, the Board will also obtain additional examination of the Veteran's service-connected right shoulder disability which potentially demonstrates some overlapping aspects of disability.

Finally, the Veteran seeks a temporary total evaluation for degenerative disc disease of the cervical spine following his cervical fusion on October 30, 2007.  He has submitted records showing that he utilized accrued sick leave from October 30, 2007 to November 9, 2007, and Family Medical Leave Act (FMLA) benefits from November 14-16, 2007.  A November 5, 2007 letter from his private neurosurgeon reflects that the Veteran was cleared for return to regular duty on November 13, 2007.

The Veteran has also submitted medical treatise articles discussing spinal fusion recovery which state that it takes a few months for the fusion bone mass to become established.  It is recommended that an aggressive physical exercise program should begin three months after surgery.

A temporary total rating for convalescence may be assigned on several bases.  In relevant part, such a rating may be assigned for surgery necessitating at least one month of convalescence.  38 C.F.R. § 4.30(a)(1).  This requirement does not appear to be met as the Veteran's private physician released him for regular duty approximately two weeks following his cervical spine surgery.

A temporary total rating for convalescence can also be assigned for severe postoperative residuals such as incompletely healed surgical wounds or therapeutic immobilization of one major joint or more.  38 C.F.R. § 4.30(a)(2).  The Board cannot fully address these factors at this time as the record does not include any physical therapy and/or follow-up evaluation records immediately following his October 30, 2007 cervical spine surgery.  The Board will defer this issue to allow the Veteran to submit any relevant convalescence treatment records.

Accordingly, the case is REMANDED for the following action:

1.  Assist the Veteran in obtaining all physical therapy and follow-up evaluation records immediately following his October 30, 2007 cervical spine surgery.

2.  Associate with the claims folder clinical records of the Veteran's relevant records of VA treatment since August 22, 2012, including any records relating to his potential participation in a hormone research project at the VA NWI.

3.  Upon completion of the above, schedule the Veteran for appropriate examination(s) to evaluate the current severity of service-connected cervical spine and right shoulder disabilities.  The contents of the claims folder must be made available to the examiner for review.  Following interview of the Veteran, review of the claims folder contents and examination, the medical examiner should address the following questions:

      a) provide the Veteran's range of motion findings for the Veteran's right shoulder and cervical spine;
      
      b) evaluate whether the Veteran has pain, pain on use, weakness, incoordination, or excess fatigability of the right shoulder joint and/or cervical spine?  If feasible the examiner should portray any additional functional limitation of the right shoulder and/or cervical spine due to these factors in terms of degrees of additional loss of motion.  If not feasible, this should be stated for the record together with the rationale.  If the Veteran does not have pain or any of the other factors, that fact should be noted in the file;

   c) evaluate whether the Veteran has had any recurrent dislocations of the right shoulder?  If so, the examiner should describe obtain a history of the frequency of such dislocations; and

   d) describe all chronic neurologic manifestations of the service-connected cervical spine disability, to include specifying any and all neurologic symptoms (e.g., neuritis, neuralgia, sensory loss, body part dysfunction, etc.) with reference to the nerve(s) affected - in particular, the examiner should discuss the reported numbness located in the ring and small fingers and the ulnar forearm, right greater than left.

4.  Schedule the Veteran for appropriate examination to determine whether his service-connected TBI has caused or aggravated his erectile dysfunction.  The contents of the claims folder should be made available to the examiner for review.  Following interview of the Veteran, review of the claims folder contents and examination, the medical examiner should address the following questions:

	a) whether it is at least as likely as not that the Veteran's service-connected TBI has caused his erectile dysfunction; OR

	b) whether it is at least as likely as not that the Veteran's service-connected TBI has aggravated his erectile dysfunction beyond the normal progress of the disorder.

In providing this opinion, the examiner is requested to specifically consider the following:

* the commentary in the December 2011 VA TBI examination report that up to 30% of mild TBI patients may have a decrease in sex hormones, stress hormones and thyroid hormones among others; and
* the Veteran's recent VA clinical records reflecting that the Veteran is receiving testosterone injections.

5.  Furnish the Veteran an SOC with regard to the issue of entitlement to service connection for hypertension. The Veteran and his representative should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue.  Thereafter, these issues are to be returned to the Board only if an adequate and timely substantive appeal is filed.

6.  Thereafter, readjudicate the claims remaining on appeal.  The RO should specifically consider whether a separate disability rating is warranted for right upper extremity radiculopathy for the time period prior to cervical spine surgery on October 30, 2007, and whether the Veteran has manifested any chronic neurologic manifestations of cervical spine IVDS following cervical spine surgery on October 30, 2007.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond.

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims.  His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated.  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).




______________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs