Citation Nr: 1309323	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO. 08-00 786	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to service connection for right ear hearing loss.

2. Entitlement to an increased rating in excess of 50 percent for status post subarachnoid hemorrhage with residual cognitive disability.  

3. Entitlement to an increased rating in excess of 20 percent for status post subarachnoid hemorrhage with residual seizure disability. 

4. Entitlement to an increased rating for degenerative joint disease of the lumbosacral spine in excess of zero percent (noncompensable) prior to August 22, 2011; and in excess of 20 percent from August 22, 2011.  

5. Entitlement to an increased (compensable) rating for status post subarachnoid hemorrhage with residual headaches. 

6. Entitlement to a higher initial (compensable) rating for degenerative changes of the right elbow. 

7. Entitlement to a higher initial (compensable) rating for degenerative changes of the left elbow. 

8. Entitlement to a higher initial rating for degenerative arthritis of the left shoulder in excess of zero percent (noncompensable) prior to August 22, 2011; and in excess of 10 percent from August 22, 2011. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran; the Veteran's spouse


ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel


INTRODUCTION

The Veteran served on active duty from August 1978 to August 2004. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. 

The Veteran and the Veteran's spouse testified at an April 2011 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file.

In June 2011, the Board remanded the issues currently on appeal and an additional claim for service connection for left ear hearing loss to the Appeals Management Center (AMC) for further development. In a November 2012 rating decision, the RO granted service connection for left ear hearing loss. As the November 2012 rating decision acted as a full grant of the Veteran's claim for service connection for left ear hearing loss, the issue is no longer in appellate status, and is not before the Board. 

In the June 2011 Remand, the Board noted that the Veteran had raised the issue of entitlement to service connection for a long post-surgical scar on the side of his head during the pendency of the appeal. As the RO, as the Agency of Original Jurisdiction (AOJ) had not adjudicated that issue, the Board referred it to the AOJ for appropriate action. The record contains no indication that the AOJ has performed any development regarding that particular claim. Therefore, the Board again refers the Veteran's claim for service connection for a scar of the head to the AOJ for development. 

The Veteran has also raised issues for entitlement to service connection for left side motor deficits and weakness related to the Veteran's in-service subarachnoid hemorrhage. Specifically, in an August 2011 VA joints examination report, a VA examiner reported that the Veteran experienced minimal left lower extremity weakness/apraxia (difficulty initiating and sustaining muscle strength) related to his subarachnoid hemorrhage. Moreover, in an August 2011 VA neurological examination report, a VA examiner noted that the Veteran experienced left body sensory complaints with subtle left body motor deficits which the examiner also attributed to his subarachnoid hemorrhage. Therefore, the Board refers the issues of service connection for service connection for left side motor deficits and weakness to the AOJ for development. 






FINDINGS OF FACT

1. The Veteran has not been shown to have right ear hearing loss that manifested in service or within one year thereafter, or current right ear hearing loss that is causally or etiologically related to service. 

2. For the entire increased rating period under appeal, the Veteran's cognitive disability has not caused occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood.

3. For the entire increased rating period under appeal, the Veteran's seizure disability has not been manifested by symptomatology more nearly approximating a major seizure within a six-month period or two within a one-year period, or minor seizures averaging at least five to eight per week.

4. For the increased rating period prior to August 22, 2011, the Veteran's degenerative joint disease of the lumbosacral spine was not manifested by symptomatology more nearly approximating limitation of function of the back related to degenerative joint disease.

5. For the increased rating period from August 22, 2011, the Veteran's degenerative joint disease of the lumbosacral spine has not been manifested by symptomatology more nearly approximating limitation of motion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

6. For the entire increased rating period under appeal, the Veteran's headache disability has not been manifested by symptomatology more nearly approximating characteristic prostrating attacks averaging one in two months over the course of several months; but is a subjective residual when consistent with the disease and not more likely attributable to other disease.


7. For the initial rating period under appeal, the Veteran's degenerative changes of the right elbow have not been manifested by symptomatology more nearly approximating flexion of the forearm limited to 110 degrees; extension of the forearm limited to 45 degrees; or favorable or unfavorable ankylosis of the right elbow. 

8. For the initial rating period under appeal, the Veteran's degenerative changes of the left elbow have not been manifested by symptomatology more nearly approximating flexion of the forearm limited to 110 degrees; extension of the forearm limited to 45 degrees; or favorable of unfavorable ankylosis of the left elbow. 

9. For the initial rating period prior to April 1, 2011, the Veteran's degenerative arthritis of the left shoulder was not manifested by limitation of motion or instability of the left shoulder. 

10. For the initial rating period from April 1, 2011, the Veteran's degenerative arthritis of the left shoulder has been manifested symptomatology more nearly approximating otherwise noncompensable limitation of motion of the arm; for the initial rating period from April 1, 2011, the Veteran's degenerative arthritis of the left shoulder has not been manifested by symptomatology more nearly approximating limitation of motion of the arm to shoulder level, non-union of the clavicle or scapula with loose movement, or dislocation of the clavicle or scapula. 


CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).

2. For the entire increased rating period under appeal, the criteria for an increased rating in excess of 50 percent for status post subarachnoid hemorrhage with residual cognitive disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, 4.130, Diagnostic Code 8007-9326 (2012).

3. For the entire increased rating period under appeal, the criteria for an increased rating in excess of 20 percent for status post subarachnoid hemorrhage with residual seizure disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8007-8912 (2012).

4. For the increased rating period prior to August 22, 2011, the criteria for an increased (compensable) rating for degenerative joint disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5010-5237 (2012).

5. For the increased rating period from August 22, 2011, the criteria for an increased rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5003-5242 (2012).

6. For the entire increased rating period under appeal, the criteria for a 10 percent rating for status post subarachnoid hemorrhage with residual headaches are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8007-8100, Note (2012).

7. For the initial rating period under appeal, the criteria for a higher initial (compensable) rating for degenerative changes of the right elbow have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5010-5206 (2012).

8. For the initial rating period under appeal, the criteria for a higher initial (compensable) rating for degenerative changes of the left elbow have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5010-5206 (2012).

9. For the initial rating period prior to April 1, 2011, the criteria for a higher initial (compensable) rating for degenerative arthritis of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 
38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5010-5203 (2012).

10. For the initial rating period from April 1, 2011, to August 21, 2011, the criteria for a higher initial rating of 10 percent, but no greater, for degenerative arthritis of the left shoulder have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5201-5003 (2012).

11. For the initial rating period from August 22, 2011, the criteria for a higher initial rating in excess of 10 percent for degenerative arthritis of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.71a, Diagnostic Code 5201-5003 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the veteran prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Regarding the Veteran's claim for service connection for right ear hearing loss, VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). 

With regard to the Veteran's respective claims for higher initial ratings for degenerative changes of the right and left elbows, and degenerative arthritis of the left shoulder, the claims arise from the Veteran's disagreement with initial ratings following the respective grants of service connection. Once service connection is granted, the claims are substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

With regards to the Veteran's claims for increased ratings for status post subarachnoid hemorrhage with residual cognitive disorder, status post subarachnoid hemorrhage with residual seizure disorder, degenerative joint disease of the lumbosacral spine, and status post subarachnoid hemorrhage with residual headaches, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

With regard to all claims on appeal, VA has satisfied its duty to notify the Veteran by issuing proper notice letters. In a December 2005 VCAA notice letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claims; the information and evidence that VA would seek to provide; and the information and evidence the Veteran was expected to provide. Although this letter did not contain the information regarding the assignment of ratings and effective dates required by Dingess, the RO issued a follow-up letter in June 2006 and, subsequently, readjudicated the Veteran's claim for service connection for right ear hearing loss in a November 2007 Statement of the Case (SOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a SOC or Supplemental Statement of the Case (SSOC), is sufficient to cure a timing defect). 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records, reports of post-service medical treatment, reports of respective VA examinations in July 2004, February 2006, and August 2011, and a VA medical opinion regarding the nature of the Veteran's bilateral elbow disability procured in November 2012. 

This case was remanded in June 2011 so that VA could make reasonable attempts to obtain any outstanding VA and private treatment records, and to provide the Veteran with VA examinations to determine the nature and severity of the Veteran's disabilities. 

At the April 2011 Travel Board hearing, the Veteran testified that a private neurologist had recently treated him for his cognitive disorder. Of note, the Veteran did not provide the private neurologist's name or contact information during the hearing. In the subsequent June 2011 Remand, the Board requested that the Appeals Management Center (AMC) contact the Veteran and request that he provide completed authorization and release forms so that the AMC could procure any outstanding treatment records. In July 2011, the AMC issued a notice letter to the Veteran asking for the information requested in the June 2011 Remand with blank authorization and release forms attached. The record indicates that the Veteran did not reply to the AMC's July 2011 letter. 

Under the law, a claimant has a responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a). The duty to assist in the development and the adjudication of claims is not a one-way street. If an appellant wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); see also 38 C.F.R. § 3.655 (2012) (noting that the failure to appear for a VA medical examination may result in the denial of a claim). As the AMC made a reasonable attempt to acquire the outstanding private treatment records, the Board finds that a remand for an additional attempt to procure outstanding treatment records is not required. 

The Board finds that there was substantial compliance with its June 2011 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Veteran has not made VA aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. 
§ 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 

Evidentiary Standards and Standard of Proof

In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused veteran's death).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. 
§ 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson, 581 F.3d at 1316. 

Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, hearing loss) manifested itself to a compensable degree within one year of separation from service. 
38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

Service Connection for Right Ear Hearing Loss

The Veteran contends that he has hearing loss in the right ear as a result of service. Because the Veteran's level of hearing loss in his right ear does not meet the regulatory threshold to be considered a disability for VA purposes, service connection for right ear hearing loss will be denied.


For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of these frequencies are 26 dB or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

Reviewing the service treatment records, in an October 1977 service enlistment medical examination report, a service examiner indicated that the Veteran's right ear auditory thresholds were 5 dB at all frequencies. In an October 1977 report of his medical history, the Veteran denied having ever experienced hearing loss. 

In a February 1979 service treatment record, the Veteran reported that he could not hear correctly out of either ear. Upon examination, the service examiner noted that the Veteran's ears were filled with cerumen. The service examiner subsequently irrigated the Veteran's ears and noted that they were clear. 

In an October 1980 service treatment record, the Veteran reported experiencing loss of hearing in both ears. Upon examination, the service examiner noted bilateral cerumen impaction in both ears. After cleaning, the diagnosis was bilateral otitis media. 

In a July 1985 service periodic medical examination report, a service examiner indicated that the Veteran's right ear auditory thresholds were five dB at 500 Hz, 
10 dB at 1000 Hz, five dB at 2000 Hz, 15 dB at 3000 Hz, 15 dB at 4000 Hz, and 
20 dB at 6000 Hz. 

In a March 1990 service periodic medical examination report, a service examiner noted that the Veteran's right ear auditory thresholds were zero dB at 500 Hz, 
zero dB at 1000 Hz, zero dB at 2000 Hz, zero dB at 3000 Hz, and 10 dB at 
4000 Hz. 

In a May 1994 service hearing conservation data report, a service examiner noted that the Veteran's right ear auditory thresholds were five dB at 500 Hz, five dB at 1000 Hz, zero dB at 2000 Hz, 10 dB at 3000 Hz, five dB at 4000 Hz, and 25 dB at 6000 Hz. In a May 1994 report of his hearing loss history, the Veteran denied having any hearing loss symptomatology. 

In an April 1995 service periodic medical examination report, a service examiner indicated that the Veteran's right ear auditory thresholds were 10 dB at 500 Hz, 
five dB at 1000 Hz, zero dB at 2000 Hz, 10 dB at 3000 Hz, 10 dB at 4000 Hz, and 10 dB at 6000 Hz. 

In a May 1996 service hearing conservation data report, a service examiner noted that the Veteran's right ear auditory thresholds were 10 dB at 500 Hz, five dB at 1000 Hz, zero dB at 2000 Hz, 15 dB at 3000 Hz, five dB at 4000 Hz, and 15 dB at 6000 Hz. In a May 1996 report of his hearing loss history, the Veteran denied experiencing any hearing loss. 

In an April 1998 service hearing conservation data report, a service examiner noted that the Veteran's right ear auditory thresholds were five dB at 500 Hz, five dB at 1000 Hz, zero dB at 2000 Hz, 10 dB at 3000 Hz, five dB at 4000 Hz, and 25 dB at 6000 Hz. In an April 1998 report of his hearing loss history, the Veteran denied having any hearing loss symptomatology, but also indicated that his right ear was better than his left ear. 

In a January 2006, post service conservation data report, the Veteran's right ear auditory thresholds were noted to be 10 dB at 500 Hz, five dB at 1000 Hz, zero dB at 2000 Hz, 10 dB at 3000 Hz, 15 dB at 4000 Hz, and 10 dB at 6000 Hz. 

Reviewing the post-service evidence, in a February 2006 VA audiology examination report, the Veteran reported experiencing gradual deterioration of hearing sensitivity over the past 10 to 12 years, and a familial history of hearing loss, specifically with his father who experienced age-related hearing loss. The Veteran reported being exposed to loud noises emanating from the flightline and generators while working as a power line worker during 26 years of service. The Veteran reported using hearing protection during service. The Veteran denied experiencing any loud noise exposure as a civilian. 

Upon examination, the February 2006 VA audiology examiner noted that the Veteran's right ear auditory thresholds were 15 dB at 500 Hz, 10 dB at 1000 Hz, 
10 dB at 2000 Hz, 10 dB at 3000 Hz, 10 dB at 4000 Hz, 25 dB at 6000 Hz, and 35 dB at 8000 Hz. The Veteran's speech recognition score in the right ear was 96 percent. The VA examiner diagnosed normal right ear hearing. 

In an August 2011 VA audiology examination report, a VA examiner noted that the Veteran's right ear auditory thresholds were 10 dB at 500 Hz, 10 dB at 1000 Hz, 
10 dB at 2000 Hz, 10 dB at 3000 Hz, and 15 dB at 4000 Hz. The Veteran's speech recognition score in the right ear was 94 percent. The VA examiner diagnosed clinically normal right ear hearing. 

The Veteran's right ear hearing has not met the auditory threshold criteria set forth in 38 C.F.R. § 3.385 at any time during the pendency of the appeal. Additionally, the Veteran's speech recognition scores using the Maryland CNC Test have not been less than 94 percent during the entire pendency of the appeal. Thus, during the pendency of the appeal, the Veteran's right ear hearing loss has not met the criteria to qualify as a disability for VA purposes. 38 C.F.R. § 3.385. Service connection for right ear hearing loss is therefore not warranted. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits).  

The Veteran is competent to report hearing loss as he perceives it. However, a grant of service connection for right ear hearing loss must be predicated on objective testing findings corresponding to the criteria of 38 C.F.R. § 3.385. Congress specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1110, 1131. In the absence of competent evidence that the Veteran currently has right ear hearing loss to an extent recognized as a disability under the governing regulation, there can be no award of service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 

The preponderance of the evidence is against the claim, and service connection for right ear hearing loss must be denied. 38 U.S.C.A. § 5107(b); Gilbert, at 49.

Initial and Increased Rating Claims

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection (i.e., a higher initial rating claim), separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue (i.e., an increased rating claim), the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

"The relevant temporal focus for adjudicating an increased rating claim [as opposed to a higher initial rating claim] is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Id. at 509. 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 

Increased Rating for Cognitive Disability

For the entire increased rating period under appeal, the Veteran contends that his status post subarachnoid hemorrhage with residual cognitive disability is more severe than reflected by its current 50 percent evaluation. Because the Veteran's cognitive disability symptomatology did not more nearly approximate the criteria for the next higher rating under the appropriate diagnostic code during the entire increased rating period under appeal, the Veteran's claim will be denied. 

As a matter of clarification, the Veteran retired from active service on August 31, 2004. The RO originally granted service connection for status post subarachnoid hemorrhage with residual cognitive disability in a rating decision, issued with a notice of the decision on October 28, 2004. In granting service connection, the RO assigned a 30 percent initial rating for the Veteran's cognitive disability, effective September 1, 2004, the day after his discharge from service. 

On November 2, 2005, the Veteran filed a statement, dated October 27, 2005, indicating his disagreement with the 30 percent initial rating assigned by the RO for his cognitive disability in the October 2004 rating decision. Under VA regulations, a Notice of Disagreement (NOD), disagreeing with the initial rating assigned in a rating decision, must be filed within one year of the mailing of the notice of the initial rating decision. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). Although the November 2005 statement was dated "October 27, 2005," VA regulations stipulate that, as it was not filed within one year of the October 28, 2004 mailing of the initial rating decision, it did not qualify as a NOD, but, rather, was a new claim for an increased rating, in excess of 30 percent, for the Veteran's service-connected cognitive disability. In a December 2005 letter, the RO notified the Veteran that the time limit for filing an appeal of the October 2004 rating decision had expired prior to the filing of the November 2005 statement, and advised him of his right to appeal the RO's finding regarding the expiration of the time period for filing an appeal. The record contains no indication that the Veteran filed an appeal of the expiration of the time period for filing an appeal of the October 2004 rating decision. 

In a claim for a higher initial rating, if such claim is received within one year from the Veteran's discharge from service, VA may assign a higher initial rating from the day after the date of the Veteran's discharge. 38 U.S.C.A. § 5110(b)(1) (West 2002 & Supp. 2012). By contrast, a claim for an increased rating can be granted, at the earliest, from a date within the one-year period prior to the date of receipt of the claim for increase by VA if the evidence shows that an increase in severity occurred during the one-year period before the veteran filed the claim for increase. 
38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (2012); Gaston v. Shinseki, 
605 F.3d 979, 982 (Fed. Cir. 2010). 

In a November 2012 rating decision, the AMC partially granted the Veteran's claim for an increased rating for a cognitive disability, assigning a 50 percent rating. In doing so, however, the AMC made the 50 percent rating effective September 1, 2004, the day after the Veteran's discharge from service. Although the Board presently takes no action as to the establishment of the effective date, it is clear that by law, its scrutiny is on a claim for an increased rating for a cognitive disorder and not a claim for a higher initial rating. Therefore, the Veteran's present level of disability, not his level of disability since his discharge from service, is the primary concern. Francisco, 7 Vet. App. 55. 

For the entire increased rating period under appeal, the Veteran's cognitive disability has been evaluated under 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Code 8007-9326. Diagnostic Code 8007 is used to denote the rating criteria for embolisms of the brain. 38 C.F.R. § 4.124a. Diagnostic Code 9326 is used to denote the rating criteria for dementia, which is usually rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. 

Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for symptomatology more nearly approximating 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned for symptomatology more nearly approximating occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships.

A 100 percent rating is assigned for symptomatology more nearly approximating 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; and memory loss for names of close relatives, own occupation, or own name. See id. 

Symptoms listed in the 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected mental disorders 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. The 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. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). Higher scores correspond to better functioning of the individual. 

Under the DSM-IV, 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). 

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

Reviewing the pertinent evidence, in an August 2005 private neuropsychological evaluation report, the Veteran reported experiencing difficulties with his short-term memory, including repeating himself, forgetting when he took medications, forgetting intentions midtask, misplacing items, and keeping track of time. The Veteran also reported experiencing difficulties with concentration, stating that he had difficulty focusing his attention, avoiding distraction, and keeping his mind from wandering. The Veteran admitted having some mild spatial disorientation, indicating that he had difficulty finding his way to his doctor's office and to his new workplace. The Veteran stated that he had no difficulty finding his way to familiar places. The Veteran reported that his memory difficulties were affecting his current job performance in that he had to repeat questions to his supervisors regarding his worksite job duties and that he had some difficulty learning new job tasks.

Upon examination, the August 2005 private examiner indicated that the Veteran did not have current depression or anxiety. The Veteran stated that his current mood was "pretty good" and his wife indicated that he was "basically very happy." The Veteran denied social withdrawal, but acknowledged some decrease in initiative, stating that he had to push himself to get up and do things during the day. The Veteran stated that he would lie in bed most of the day if he did not have to go to work or did not have things to keep him busy. The Veteran acknowledged feeling fatigued frequently, possibly due to medications. The Veteran denied current homicidal or suicidal ideation. The Veteran stated that his sleep pattern was normal and that he generally felt rested in the morning. The Veteran denied symptoms of anxiety or evidence of psychotic or delusional thinking. On a Patient Assessment of Functioning Inventory, the Veteran indicated experiencing significant current difficulties with memory (including recent memory for conversations, events, and people; losing track of time; misplacing items; and forgetting to perform tasks), language (including auditory comprehension and word finding), seeing all of what he was looking at, confusion, concentration, spatial disorientation, performing calculations, planning and organizing activities, solving problems, following directions to get places, and following instructions on how to accomplish tasks. The Veteran stated that he did not feel as "bright" as he did prior to his in-service aneurysm.

The August 2005 private examiner noted that the Veteran was appropriately attired, adequately groomed, and fully ambulatory. The Veteran's mood was pleasant, and his affect was appropriate. The Veteran's speech was of regular rate, tone, and rhythm. The Veteran's speech content was clear, concise, and goal-directed. The Veteran was able to provide a coherent medical history and did not appear to have difficulty retrieving dates or details. The Veteran appeared to understand test instructions and had no difficulties following directions. The Veteran's test-taking behavior was within normal limits. On a checkbook test, however, the Veteran needed to be reminded to enter deposits into the checkbook register. The Veteran tolerated frustration well, and remained cooperative and pleasant throughout the examination. 

In an October 2005 lay statement, the Veteran indicated that he was concerned about his memory loss and believed that he was hindered from working at jobs that paid more than his current work as a security guard. 

In a February 2006 VA psychiatric examination report, when asked to rate the severity of his mental health symptomatology, the Veteran indicated that it was a one or two on a scale of 10. The Veteran denied experiencing any serious depression symptoms, such as decreased interest, appetite disturbance, sleep disturbance, hopelessness, decreased concentration, or decreased energy. The Veteran denied any mania symptoms such as elevated mood, pressure, talkativeness, flight of ideas, recklessness, or impulsivity. The Veteran denied any anxiety symptoms, such as panic attacks, phobia, dissociative symptoms, or symptoms associated with a trauma. The Veteran denied any overt psychotic symptoms including auditory and visual hallucinations, paranoia, and odd beliefs. The Veteran denied any suicidal ideation, plans, or history of attempts. The Veteran reported occasionally becoming concerned about some family matters, but also stated that, otherwise, things were going well. The Veteran denied any history of substance abuse or violence. The Veteran indicated that he generally was capable of managing himself and his household. 

On clinical examination, the Veteran had some difficulty with recall, but otherwise his orientation, registration, attention, calculation, language, and visual motor skills were grossly intact. The Veteran scored 28 out of 30 on the test. The VA examiner noted that the Veteran was working full-time as a security guard. The diagnosis was a cognitive disorder, not otherwise specified, with a mild cognitive dysfunction. The GAF score was 58. 

At the April 2011 Travel Board hearing, the Veteran testified that he would periodically forget common things - he provided the example of forgetting where he put his shoes. His spouse indicated that she had to find things for him and keep track of things that he might have forgotten. The Veteran indicated that he could remember the name of his grandchildren. The Veteran also stated that he would have difficulty remembering where he was while driving. 

However, in an August 2011 VA psychiatric examination report, the Veteran reported that he had been working as a high school security guard, and that he had not needed to take any time off from his job due to his cognitive disorder. The Veteran indicated that he did not abuse alcohol or drugs, did not pursue any social or leisure activities, and had no history of violence, assaultiveness, or suicide attempts. The Veteran stated that he experienced difficulties at work due to his concentration. As an example, the Veteran stated that it took him 90 minutes to change locker locks because he had difficulties focusing on and understanding his task. The Veteran stated that he would feel overwhelmed sometimes due to his cognitive difficulties and that he had left the service because he was unable to perform supervisory duties due to his tendency to become overwhelmed. The Veteran indicated that he sometimes felt overwhelmed while in crowds, but stated that he did not act inappropriately. The Veteran stated that he sometimes felt down, but indicated that he was not depressed as he felt thankful to be alive. The Veteran stated that he would sometimes get lost in unfamiliar surroundings, but would be able to correct himself by using a GPS system.

Upon examination, the August 2011 VA examiner reported no gross impairment in the Veteran's thought processes or communication, and noted no delusions or hallucinations. The VA examiner noted that the Veteran's eye contact was good and his behavior appropriate. The VA examiner indicated that the Veteran did not display suicidal or homicidal thoughts, ideation, plans, or intent. The VA examiner indicated that the Veteran had the ability to maintain minimal personal hygiene and other basic activities of daily living. The VA examiner indicated that the Veteran was oriented to person, place, and time. The VA examiner noted that the Veteran's score on the Saint Louis University Mental Status (SLUMS) test was 26 out of 30, and that the Veteran experienced some difficulty with processing speed and short-term memory recall during testing. The VA examiner noted that the evidence indicated impairment of memory. The VA examiner noted no obsessive or ritualistic behavior, or impairment in impulse control. The VA examiner indicated that the Veteran had no history of treatment for panic attacks, depression, depressed mood, or anxiety. The VA examiner stated that the Veteran experienced mild sleep impairment, but also noted that the Veteran was able to attend to his duties during the day and did not need to take naps. 

After the examination and interview, the August 2011 VA examiner diagnosed a cognitive disorder NOS and assigned a GAF score of 58. The VA examiner indicated that the Veteran had mild to moderate difficulties with cognitive functioning, but noted that the Veteran was able to work despite these problems and had a good relationship with his wife and coworkers, even though the Veteran was socially mildly withdrawn. The VA examiner indicated that the Veteran was able to perform his activities of daily living including personal hygiene. The VA examiner stated that the Veteran's thought processes and communications were not significantly impaired, although there was evidence on neuropsychological testing of some difficulty with short-term memory which caused the Veteran concern during his interpersonal interactions at times. 

The examiner reported that the Veteran's employment had been mildly impaired due to his cognitive disorder due to his difficulty with multitasking and social interaction, but the Veteran had not missed any work due to his disorder. In conclusion, the VA examiner wrote that the Veteran had occupational and social impairment of short- and long-term memory, and that the Veteran's awareness of these problems caused mild disturbances of mood of insufficient severity to diagnose a mood disorder. 

As the claim before the Board is one for an increased rating for a cognitive disability, the probative evidence of record consists mainly of statements made by the Veteran regarding his own symptomatology, as provided to examiners or directly to VA personnel. In an August 2011 VA neurological examination report, otherwise not relevant to the discussion of the Veteran's cognitive disorder, a VA examiner indicated that the Veteran was a very poor historian due to his ongoing cognitive issues. Yet, the Veteran has made consistent statements regarding his current cognitive disability symptomatology throughout the increased rating period. As the Veteran is competent to describe his current cognitive disability symptomatology and the Board finds no reason to doubt the credibility of his statements, the Board finds that the Veteran's reports of his cognitive disability symptomatology have great probative value in this matter. 

Throughout the increased rating period under appeal, the Veteran's cognitive disability symptomatology has not more nearly approximated that required for a 70 percent evaluation under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran's symptoms do not cause him to have deficiencies in "most" areas and instead fit within the descriptive list of criteria for a 50 percent rating. Currently, the Veteran's cognitive disability is manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity due to impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), the criteria for a 50 percent rating under the General Rating Formula for Mental Disorders. 

The evidence of record does not indicate that the Veteran experiences cognitive disability symptomatology more nearly approximating occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, the criteria for a next higher 70 percent rating. Specifically, the evidence contains no notation indicating that the Veteran experiences symptomatology more nearly approximating suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene. Id. 

The Veteran indicated that he experienced some difficulty in performing difficult work as he had difficulty completing too many tasks without feeling overwhelmed. However, the Veteran has maintained his job as a security guard for the entirety of the increased rating period without missing any work or receiving any reprimands due to his cognitive disability. Moreover, the evidence of record does not indicate symptomatology more nearly approximating an inability to establish and maintain effective relationships, another criterion listed in the requirements for a 70 percent rating under the General Rating Formula for Mental Disorders. Id. In fact, although the evidence indicates that the Veteran is mildly socially withdrawn, the evidence also indicates that the Veteran has been able to maintain effective relationships at both his workplace and, especially, with his family. Moreover, the Veteran's GAF scores of 58 indicate moderate symptomatology, in keeping with his currently assigned 50 percent rating. 

The disability picture for the Veteran's cognitive disability does not more nearly approximate a 70 percent rating under the applicable diagnostic code. 38 C.F.R. 
§ 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. The Veteran's symptoms have not met the requirements for an increased rating at any time during the increased rating period, and a staged rating is not appropriate. See Hart, 21 Vet. App. at 505.

Increased Rating for Seizure Disability

The Veteran contends that his status post subarachnoid hemorrhage with residual seizure disability is more severe than reflected by its currently assigned 20 percent rating. Because the Veteran's seizure disability symptomatology did not more nearly approximate the criteria for the next higher rating under the appropriate diagnostic code during the entire increased rating period under appeal, the Veteran's claim will be denied. 

For the entire increased rating period under appeal, the Veteran's seizure disability has been evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8007-8912. Diagnostic Code 8007 is used to denote the rating criteria for embolisms of the brain. 38 C.F.R. § 4.124a. Diagnostic Code 8912 is used to denote the rating criteria for Jacksonian and focal motor or sensory epilepsy. Id. Under Diagnostic Code 8912, psychomotor seizures will be rated as major seizures under the General Rating Formula for Major and Minor Epileptic Seizures when characterized by automatic states and/or generalized convulsions with unconsciousness. Psychomotor seizures will be rated as minor seizures under the General Rating Formula when characterized by brief transient episodes of random motor movements; hallucinations; perceptual illusions; abnormalities of thinking, memory, or mood; or autonomic disturbances. 

Under the General Rating Formula for Major and Minor Epileptic Seizures, a major seizure is characterized by the generalized tonic-clonic convulsion, with unconsciousness. A minor seizure consists of a brief interruption in conscious control, with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal); or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). A 20 percent evaluation is warranted for at least one major seizure in the past two years or at least two minor seizures in the last six months. A 40 percent evaluation is in order for at least one major seizure in the last six months or two in the last year, or an average of at least five to eight minor seizures weekly. Id.

In a February 2006 VA neurology evaluation report, the Veteran indicated that he experienced onset of tonic-clonic seizures in April 2003. The Veteran stated that he had his last such seizure during service in June 2004. The Veteran reported that his seizures usually occurred when he missed his medications and that his memory problems sometimes led to the missing of his medications. The Veteran stated that his wife helped him keep track of his medication. The Veteran reported that he had "small spells" that would occur while he was watching television. The Veteran indicated that, during such spells, he would be essentially non-responsive. When he would come out of the spell, he would only notice that he had missed a segment of the television show that he was watching. The Veteran also recalled that he fell out of bed eight months prior to the examination, but did not know whether he was having a seizure at the time. The Veteran indicated that he did not bite his tongue or lose consciousness during a seizure. 

After an examination, the February 2006 VA examiner diagnosed a seizure disorder, well-controlled by medication with the last generalized tonic-clonic seizure occurring one year prior to examination. The VA examiner noted that the Veteran had experienced approximately two to three partial complex seizures during the previous year. 

In a June 2007 statement, the Veteran wrote that he had to take his seizure medication for the rest of his life every day or another seizure might occur. 

At the April 2011 Travel Board hearing, the Veteran testified that he did not have seizures as long as he took his medication. The Veteran's spouse indicated that the Veteran would have moments when he would stare off into space and not communicate. The Veteran's spouse indicated that this would occur three to four times per week. The Veteran's spouse also stated that, if the Veteran were to have a major seizure, he would lose control of his bladder. 

In an August 2011 VA neurological examination report, the Veteran reported taking medication for seizure control and stated that he was seizure-free as long as he took his medication. The Veteran reported that he had only experienced six convulsive events, that his most recent convulsive event occurred on June 24, 2004 prior to his retirement from active service, and that he had been seizure-free since that time. The Veteran's spouse stated that the Veteran experienced staring spells that were greater than the six convulsive events that the Veteran could recall. The Veteran indicated that over the previous 12 months he had missed approximately eight days of work due to nonspecific upper respiratory infections, but not due to his seizure disability. The Veteran indicated that he would experience urinary incontinence if his bladder were full at the time of a generalized seizure, but that he would not experience any urinary problems if his bowel or bladder were not full. 

After an examination, the August 2011 VA examiner diagnosed a generalized as well as complex convulsive seizure disorder, well-controlled with medications as long as the Veteran remembered to take his anticonvulsant drug therapy with the last convulsive event occurring on June 24, 2004. The VA examiner found that the Veteran's seizure disability did not then influence or affect his ability to properly handle his activities of daily living or to function appropriately in his current occupation as a security guard. The VA examiner also indicated that the Veteran's reported urinary incontinence occurred only as an accompaniment of a generalized seizure and only if the Veteran had a full bladder at the time of the event. The VA examiner reported that such symptoms occurred typically with generalized seizures and did not represent a separate disorder. 

The Board finds that all evidence regarding the Veteran's seizure disability symptomatology during the increased rating period, to include the medical and lay evidence of record, is both competent and credible. The examination reports of record were written by examiners who indicated performing thorough interviews and examinations of the Veteran prior to writing diagnoses based on their medical training. Moreover, the Veteran and his spouse are both competent to describe his current seizure disability symptomatology and the Board finds no reason to doubt the credibility of their statements. 

For the entire increased rating period under appeal, the Veteran's seizure disability symptomatology has not more nearly approximated that required for a next higher 40 percent evaluation under the General Rating Formula for Major and Minor Epileptic Seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8912. Currently, the Veteran's seizure disability is manifested by symptomatology more nearly approximating that required for the currently assigned 20 percent rating, specifically a seizure disorder manifested by at least two minor seizures in the last six months. The Veteran's seizure disorder has not been manifested by symptomatology more nearly approximating that required for a 40 percent rating, specifically a seizure disability manifested by at least one major seizure in the last six months or two in the last year, or an average of at least five to eight minor seizures weekly. As noted above, the Veteran consistently has reported that he has not experienced a major seizure since his in-service 2004 seizure. Moreover, although the Veteran's spouse has reported that the Veteran experiences minor seizures, manifested by staring episodes, these occur only three to four times per week. Therefore, the Board finds that, throughout the increased rating period under appeal, the Veteran's seizure disability symptomatology has not more nearly approximated that required for a next higher 40 percent evaluation under the General Rating Formula for Major and Minor Epileptic Seizures. Id 

The disability picture for the Veteran's seizure disability does not more nearly approximate a next higher 40 percent rating under the applicable diagnostic code. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. The Veteran's symptoms have not met the requirements for an increased rating at any time during the entire increased rating period under appeal, and a staged rating is not appropriate. Hart, at 505.

Increased Rating for Degenerative Joint Disease of the Lumbosacral Spine

For the increased rating period prior to August 22, 2011, the Veteran's lumbosacral spine disability was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. For the increased rating period from August 22, 2011, the Veteran's lumbosacral spine disability was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5242. Yet, the Board notes that disabilities classified under either of the aforementioned Diagnostic Codes 5010-5237 and 5003-5242 are rated using the same criteria. For example, Diagnostic Code 5010 is the designation used to classify disabilities related to arthritis due to trauma. However, the regulation at 38 C.F.R. § 4.71a, Diagnostic Code 5010 specifically states that disabilities classified as falling under that particular diagnostic code should be rated according to the criteria used for rating degenerative arthritis, found at Diagnostic Code 5003.

Diagnostic Code 5003 states that degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups will warrant a rating of 10 percent; and in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. Id. The above ratings cannot be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1.

Both Diagnostic Code 5237, utilized to classify lumbosacral or cervical strain disabilities, and Diagnostic Code 5242, utilized for classifying degenerative arthritis of the spine disabilities, are rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Additionally, associated neurological abnormalities (e.g., bowel or bladder impairment) are for evaluation separately. 38 C.F.R. § 4.71a. 

Under the General Rating Formula for Diseases and Injuries of the Spine, a 
10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine (meaning when additionally considering the adjacent cervical segment). See id. 

If intervertebral disc syndrome (IVDS) is present, a lumbosacral spine disability may also be rated under Diagnostic Code 5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2012). See id. 

The General Rating Formula for Rating IVDS Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. See id. 

Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See id. 

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45 (2012). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).



Prior to August 22, 2011

For the increased rating period prior to August 22, 2011, the Veteran contends that his degenerative joint disease of the lumbosacral spine was more severe than reflected by its assigned noncompensable (zero percent) rating. Because the Veteran's lumbosacral spine disability did not more nearly approximate the criteria for the next higher rating under the appropriate diagnostic code for the period prior to August 22, 2011, the Veteran's claim will be denied. 

Reviewing the pertinent evidence, in a February 2006 VA spinal X-ray report, a VA examiner noted exaggeration of lumbar lordosis; minimal retrolisthesis of L2 and L3, L3 on L4, and L4 on L5; and multilevel moderate osteophytic lipping of the lumbar spine. 

In a February 2006 VA medical examination report, the Veteran reported experiencing morning stiffness in his back, but also indicated that he had no other significant pain issues throughout the day. The Veteran stated that his job required him to stand and walk extensively, but that this did not cause him any back trouble and did not limit his ability to sit. The Veteran indicated that he could stand about four hours until he might experience a bit of stiffness requiring him to either sit or move. The Veteran indicated that he could walk for unlimited spans of time. The Veteran did not wear a back brace or use a cane or crutch. The Veteran indicated that he had never undergone an epidural, a trigger point injection, or physical therapy. The Veteran denied any radiation of pain or numbness into the lower extremities. The Veteran denied any recent flares. 

Upon examination, the February 2006 VA examiner noted no limitation of motion of the thoracolumbar spine, to include after repetitive motion. The VA examiner reported no altered range of motion or any abnormality of stance, gait, or posture due to incoordination, painful motion, impaired endurance, or fatigue. The VA examiner diagnosed lumbosacral degenerative disc disease and degenerative joint disease. 

In a January 2008 lay statement, the Veteran indicated that he experienced pain in his back when he stood on his feet for periods of time. 


At the April 2011 Travel Board hearing, the Veteran testified that he would experience stiffness in his back when getting out of bed in the morning. The Veteran stated that the stiffness would be so severe that he would experience difficulty putting one leg in front of the other. The Veteran stated that his back would improve as the day went on. The Veteran also indicated that he could stand for about an hour before his back would begin to hurt. The Veteran indicated that the pain was sharp and stiff and located in the small of his back. 

All of the evidence regarding the severity of the Veteran's degenerative joint disease of the lumbosacral spine disability symptomatology included in the claims file for the increased rating period prior to August 22, 2011, to include the medical and lay evidence of record, is both competent and credible. The VA medical examination report of record was written by a VA examiner who indicated performing a thorough interview and examination of the Veteran prior to writing findings and diagnoses based on his medical training. Moreover, the Veteran is competent to describe his current lumbosacral spine disability symptomatology and the Board finds no reason to doubt the credibility of his statements. 

For the period prior to August 22, 2011, the Veteran's degenerative joint disease of the lumbosacral spine disability symptomatology did not more nearly approximate the criteria required for a next higher 10 percent rating under Diagnostic Code 5010-5237. 38 C.F.R. § 4.71a. Specifically, the Veteran's lumbosacral spine disability was not manifested by symptomatology more nearly approximating forward flexion of the thoracolumbar spine to greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height, the criteria for a 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. 

Moreover, the Veteran's lumbosacral spine disability was not manifested by symptomatology more nearly approximating an objectively confirmed limitation of motion of the lumbosacral spine due to swelling, muscle spasm, or painful motion, the criteria for a 10 percent rating under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In addition, the evidence of record for the period prior to August 22, 2011 does not indicate that the Veteran's lumbosacral spine disability involved two or more major joints, or two or more minor joint groups. See id. 

As noted above, in the February 2006 VA spinal X-ray report, a VA examiner confirmed that the Veteran experienced degenerative joint disease of the lumbosacral spine. Yet, the VA examiner also indicated that the Veteran did not experience any limitation of motion of the back, even after repetitive motion. The VA examiner specifically reported finding no altered range of motion or any abnormality of stance, gait or posture due to incoordination, painful motion, impaired endurance, or fatigue. 

The Board has considered the Veteran's reports of pain in his lay statements during the period prior to August 22, 2011. As noted above, in January 2008 lay statement, the Veteran indicated that he experienced pain in his back when he stood on his feet for periods of time. At the April 2011 Travel Board hearing, the Veteran reported experiencing stiffness in his back with some pain in the small of his back. The presence of pain, fatigue, weakness, and lack of endurance are contemplated in 38 C.F.R. § 4.59. What is of equal importance is the remaining functional use. See Deluca, 8 Vet. App. at 206-07. Here, the evidence indicates that the Veteran did not experience functional loss of use of the lumbosacral spine due to degenerative joint disease during the increased rating period prior to August 22, 2011. 

Although the initial diagnosis of disc disease was recorded in August 2011, the Board has accorded the benefit of the doubt to the Veteran in considering whether the severity of his symptoms could receive a higher disability rating and approximate the criteria for a next higher 10 percent rating under the General Rating Formula for Rating IVDS, found at Diagnostic Code 5243. 38 C.F.R. § 4.71a. However, for the increased rating period prior to August 22, 2011, the Board finds that the Veteran's lumbosacral spine disability symptomatology has not more nearly approximated IVDS with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the 12 month period prior to August 22, 2011. The record contains no evidence, either lay or medical, indicating that the Veteran's lumbosacral spine disability resulted in any incapacitating episodes over that period. 

For the increased rating period prior to August 22, 2011, the disability picture for the Veteran's degenerative joint disease of the lumbosacral spine disability does not more nearly approximate a next higher 10 percent rating under the applicable diagnostic code. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. 

From August 22, 2011

For the increased rating period from August 22, 2011, the Veteran contends that his degenerative joint disease of the lumbosacral spine is more severe than reflected by its assigned 20 percent rating. Because the Veteran's lumbosacral spine disability did not more nearly approximate the criteria for the next higher rating under the appropriate diagnostic code for the period from August 22, 2011, the Veteran's claim will be denied. 

In an August 22, 2011 VA medical examination report, the Veteran stated that he had pain in the lumbosacral region and bilateral sacroiliac region about three days per week. The Veteran indicated that he would experience stiffness and tightness in this region most days when getting out of bed. The Veteran stated that the pain in the lower back would measure a four on a scale of 10, and would either lessen on its own or, about four or five times per month, would require the use of over-the-counter medication. The Veteran also indicated that, the morning after a day during which he walked more than usual, he would experience pain in the bilateral anterior thighs. The Veteran stated that he did not know if this thigh pain was related to his back pain. The Veteran stated that he had not experienced incapacitating episodes due to his back. The Veteran stated that he could walk for 45 minutes, but then would need a break because his back and legs would become stiff. He indicated that normally he could sit without trouble, but would become uncomfortable if he drove for more than an hour. The Veteran indicated that he had no difficulty with dressing himself or reaching into the back seat of a car. 

Upon examination, the August 2011 VA examiner noted that the Veteran demonstrated a slightly stiff, widebased gait. The VA examiner indicated that the Veteran demonstrated decreased balance with heel walking, toe walking, and squatting. In examining the Veteran's spine, the August 2011 VA examiner noted a decrease in the usual lumbar lordosis. The VA examiner indicated that the Veteran did not exhibit scoliosis and that the Veteran's pelvis was level upon standing. The VA examiner reported that the Veteran had palpable muscle spasm with tenderness in the bilateral lower lumbar paraspinals. The VA examiner noted that the Veteran's muscle spasms were of sufficient severity to result in the Veteran's abnormal spinal contour and stiff gait. The VA examiner also noted that the Veteran exhibited stiffness over the bilateral sacroiliac joints. A straight leg raise test was negative for radicular pain bilaterally. Upon motion testing, flexion was to 80 degrees with pain beginning at 65 degrees; extension was 20 degrees with pain at 20 degrees; bilateral lateral flexion was to 30 degrees without pain; and bilateral lateral rotation was to 15 degrees without pain. The VA examiner noted that there was no significant change in active range of motion following repeat testing times three against resistance and so no additional loss of range of motion due to painful motion, weakness, impaired endurance, incoordination, or instability. 

After the examination, the August 2011 VA examiner diagnosed lumbar degenerative disc disease with painful, limited range of motion. The VA examiner noted no evidence of lumbosacral radiculopathy or sciatica on the left or the right. The VA examiner reported that, while a diagnosis of IVDS did apply in that at least a portion of the Veteran's pain was discogenic, the Veteran had not experienced any incapacitating episodes in the previous year. The VA examiner also indicated that the Veteran had minimal left lower extremity weakness/apraxia (difficulty initiating and sustaining muscle strength) related to his subarachnoid hemorrhage and not his back condition. The VA examiner noted that the Veteran's low back disability would not affect the Veteran's employment. 

The Board finds that all evidence regarding the severity of the Veteran's degenerative joint disease of the lumbosacral spine disability symptomatology included in the claims file for the increased rating period from August 22, 2011, to include the medical and lay evidence of record, is both competent and credible. The VA medical examination report of record was written by a VA examiner who indicated performing a thorough interview and examination of the Veteran prior to writing findings and diagnoses based on his medical training. Moreover, the Veteran is competent to describe his current lumbosacral spine disability symptomatology and the Board finds no reason to doubt the credibility of his statements. 

Based on this evidence, for the period from August 22, 2011, the Board finds that the Veteran's degenerative joint disease of the lumbosacral spine disability symptomatology did not more nearly approximate the criteria required for a next higher 40 percent rating under Diagnostic Code 5003-5242. 38 C.F.R. § 4.71a. Specifically, the Veteran's lumbosacral spine disability was not manifested by symptomatology more nearly approximating forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Id. As noted above, the August 2011 VA examiner indicated that forward flexion of the Veteran's thoracolumabar spine was limited to 65 degrees before onset of pain, far greater than the limitation to 30 degrees required for a 40 percent rating. Moreover, the record of evidence contains no evidence, lay or medical, indicating symptomatology more nearly approximating ankylosis of the thoracolumbar spine. Moreover, the VA examiner noted that there was no significant change in active range of motion following repeat testing times three against resistance and so no additional loss of range of motion due to painful motion, weakness, impaired endurance, incoordination, or instability. 

The Board has considered the Veteran's reports of pain in his back noted in the August 2011 VA medical examination report. As noted above, the Veteran reported experiencing stiffness, tightness, and pain in his back which could be alleviated by over-the-counter medication. Yet, the presence of pain, fatigue, weakness, and lack of endurance are contemplated in the rating criteria. The Veteran's pain upon use of the back has been noted to cause a limitation of forward flexion of the back to 65 degrees, far greater than the 30-degree limit required for the next higher 40 percent rating under Diagnostic Code 5003-5242. Therefore, the evidence does not indicate that the Veteran's symptomatology more nearly approximates that required for a next higher rating due pain, fatigue, weakness, and lack of endurance. Deluca, at 206-07. 

For the increased rating period from August 22, 2011, he Board has considered whether the Veteran's lumbosacral spine disability symptomatology more nearly approximate the criteria for a next higher 40 percent rating under the General Rating Formula for Rating IVDS, found at Diagnostic Code 5243. 38 C.F.R. § 4.71a. However, for the increased rating period prior to August 22, 2011, the Board finds that the Veteran's lumbosacral spine disability symptomatology has not more nearly approximated IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during any 12 month period. The record contains no evidence, either lay or medical, indicating that the Veteran's lumbosacral spine disability resulted in any incapacitating episodes during the entire increased rating period. 

For the increased rating period from August 22, 2011, the disability picture for the Veteran's degenerative joint disease of the lumbosacral spine disability has not more nearly approximated the next higher 40 percent rating under the applicable diagnostic code. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. 

Increased Rating for Headaches

For the entire increased rating period under appeal, the Veteran contends that his status post subarachnoid hemorrhage with residual headaches disability is more severe than reflected by its currently assigned noncompensable (zero percent) rating. A ten percent rating will be assigned. 

For the entire increased rating period under appeal, the Veteran's headache disability has been evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8007-8100. Diagnostic Code 8007 is used to denote the rating criteria for embolisms of the brain. 38 C.F.R. § 4.124a. Diagnostic Code 8100 is used to denote the rating criteria for migraines. Id. Under Diagnostic Code 8100, migraines with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (zero percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. Id.  

However, Diagnostic Code 8007, as well as 8008 and 8009 is also to be evaluated as a vascular condition at a minimum of 10 percent. The descriptive NOTE indicates in part that in order for a minimum rating to be assigned, there must be ascertainable residuals, and that determinations as to the presence of residuals capable of objective verifications, such as headaches must be approached on the basis of the diagnosis recorded, and that "subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease."
 
In a February 2006 VA neurology report, the Veteran stated that he had headaches which would occur during changes in barometric pressure and were usually on the right side of his head although they sometimes occurred at the left temple as well. The Veteran indicated that he would experience light sensitivity during his headaches, but would be able to continue working. The Veteran stated that would experience some relief during headache attacks by taking over-the-counter medication like Tylenol or Motrin. The Veteran stated that the headaches would occur once every three months and that they would last all afternoon. The Veteran stated that he only missed work once when he experienced both headaches and muscle aches, but had not missed any other work. The Veteran denied significant dizziness or vertigo, but indicated that his balance could occasionally be "off" and that he would need to correct himself. After an examination, the VA examiner diagnosed headaches that were not incapacitating and generally responded to analgesia. 

At the April 2011 Travel Board hearing, the Veteran testified that he would experience migraine headaches. The Veteran stated that he would avoid lighted areas during such headaches and would lie down in a dark room at onset. The Veteran stated that he would take over-the-counter medication for the migraines and that such medication helped. The Veteran indicated that he had not experienced a migraine so severe that he would not get out of bed after onset. 

In an August 2011 VA neurology examination report, the Veteran stated that he experienced four or five headaches per month, each rating about a three to five on a scale of 10 in overall intensity/severity. The Veteran stated that he would usually have increasingly frequent headaches for several weeks in a row, followed by less frequent headaches over the next several weeks. The Veteran indicated that his headaches were aggravated usually by changes in the ambient weather/barometric pressure, stress, sleep deprivation, a missed meal, excessive activity, etc. The Veteran reported that his headaches usually lasted about two hours before resolving with medication and could be alleviated also by placing a cool pillow over this head. The Veteran stated that the headaches caused dysfunctional problems, but did not cause disabling or prostrating symptoms requiring bedrest. The Veteran indicated that his headaches were usually characterized by throbbing discomfort and squeezing pain as well as by neck discomfort. The Veteran stated that bright light and sound might aggravate his headaches, but did not precipitate them. The Veteran stated that, when symptomatic, his cognitive functions would often become worse. 

After the examination, the August 2011 VA examiner diagnosed moderate headaches occurring approximately five times per month without any prostrating or disabling features. The VA examiner reported that the Veteran's headaches were easily managed by the use of over-the-counter medication at the present time with symptoms returning to their baseline state within two hours of onset. The VA examiner found that, at the present time, the Veteran's headache disability would not influence or affect his ability to properly handle his activities of daily living or to function appropriately in his current occupation as a security guard. 

The Board finds that all evidence regarding the severity of the Veteran's headache disability symptomatology included in the claims file, to include the medical and lay evidence of record, is both competent and credible. The VA neurology examination report of record was written by a VA examiner who indicated performing a thorough interview and examination of the Veteran prior to writing a diagnosis based on medical training. Moreover, the Veteran is competent to describe his current headache disability symptomatology and the Board finds no reason to doubt the credibility of his statements. 

For the entire increased rating period under appeal, the Veteran's headache disability symptomatology has not more nearly approximated that required for a next higher 10 percent evaluation under Diagnostic Code 8100. 38 C.F.R. § 4.124a. As noted above, in order to qualify for a compensable (10 percent) rating under Diagnostic Code 8100, the Veteran's headache symptomatology must more nearly approximate characteristic prostrating attacks averaging one in two months over the last several months. As the evidence does not indicate prostrating headaches, the Board finds that the Veteran's headache disorder is not manifested by symptomatology more nearly approximating that required for compensable rating under Diagnostic Code 8007-8100. Id. 

However, the Veteran's disability picture is within the scope of the NOTE, and applicable to Diagnostic Codes 8007 through 8009, and mandates a 10 percent rating based on residuals not capable of objective verification. A 10 percent rating will be granted on this basis. The Veteran's symptoms have not met the requirements for a higher rating at any time during the entire increased rating period, and a staged rating is not appropriate. Hart, 21 Vet. App. at 505.





Higher Initial Ratings for Degenerative Changes of the
Right and Left Elbow

For the entire initial rating period under appeal, the Veteran contends that his degenerative changes of the right and left elbows are more severe than reflected by the currently assigned respective noncompensable (zero percent) ratings. Because the evidence indicates that the Veteran does not actually have degenerative changes of either elbow, the Veteran's claims for higher initial ratings will be denied.  

For the entire initial rating period under appeal, the Veteran's right and left elbow disabilities were evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5206. As noted above, Diagnostic Code 5010 is the designation used to classify disabilities more nearly approximating arthritis due to trauma. However, the regulation at 38 C.F.R. § 4.71a, Diagnostic Code 5010 specifically states that disabilities classified as falling under that particular diagnostic code should be rated according to the criteria used in rating degenerative arthritis, found at Diagnostic Code 5003. The rating criteria for Diagnostic Code 5003 are listed previously. 

Diagnostic Code 5206 is assigned for disabilities causing limitation of flexion of the forearm. 38 C.F.R. § 4.71a. Under these criteria, symptomatology more nearly approximating flexion of the forearm limited to 110 degrees is rated as noncompensably (zero percent) disabling for the major side and noncompensably (zero percent) disabling for the minor side. Symptomatology more nearly approximating flexion of the forearm limited to 100 degrees is rated 10 percent disabling for the major side and 10 percent for the minor side. Symptomatology more nearly approximating flexion of the forearm limited to 90 degrees is rated 20 percent for the major side and 20 percent for the minor side. Symptomatology more nearly approximating flexion of the forearm limited to 70 degrees is rated 30 percent disabling for the major side and 20 percent for the minor side. Symptomatology more nearly approximating flexion of the forearm limited to 55 degrees is rated 40 percent disabling for the major side and 30 percent for the minor side; and flexion of the forearm limited to 45 degrees is rated 50 percent disabling for the major side and 40 percent for the minor side. Id. Of note, the Veteran is right-handed. 

Reviewing the service treatment records, in a September 2003 service treatment record, the Veteran reported being involved in motor vehicle accident, resulting in right arm, back, and neck pain. The service examiner noted that the Veteran had sutures in his elbow. Upon examination, the service examiner noted that the Veteran's strength was five out of five in the upper extremities. The diagnosis was multiple joint/body pain status post motor vehicle accident. 

In a July 2004 VA treatment record, provided prior to the Veteran's service discharge, a VA examiner indicated that extremity strength in the Veteran's upper extremities was normal. The Veteran did not report experiencing any elbow disorder symptomatology at the time. 

In November 2005, the Veteran filed a claim for service connection for pain in his elbows. This claim was filed more than a year after the Veteran's discharge from service. 

In a February 2006 VA left elbow X-ray report, a VA examiner noted a coarse, broken large olecranon spur. In a February 2006 VA right elbow X-ray report, a VA examiner noted a small ossification adjacent to the lateral epicondyle, a coarse ossification and broken coarse spur of olecranon process, and an oval radiolucency projecting with musculotendinous junction of the triceps. 

In a February 2006 VA medical examination report, the Veteran reported experiencing soreness medially in the bilateral elbows after lifting weights at the gymnasium. The Veteran indicated that he had never experienced any swelling, weakness, or diminished range of motion of the elbow joints. The Veteran stated that he had never been diagnosed as having tendonitis, or had any physical therapy or injections. The Veteran stated that his elbows did not lock or pop on him, and only bothered him while he was lifting weights at the gymnasium. The Veteran stated that his elbow disabilities had never had any effect on his daily activities. 




Upon examination, the February 2006 VA examiner noted normal motion of the elbows, even upon repetitive motion. After an examination and a review of the February 2006 VA X-ray report, the VA examiner diagnosed degenerative changes of the elbows.

In a June 2006 rating decision, the RO granted service connection for degenerative changes of the elbows, based on the February 2006 VA examiner's diagnosis. In doing so, even though the Veteran was discharged from service in August 2004, did not file his claim for service connection until November 2005, and was diagnosed with degenerative changes of the elbows in February 2006, the RO granted service connection by finding that the Veteran's bilateral elbow disabilities were chronic arthritic diseases, subject to presumptive service connection as they had manifested themselves to a compensable degree within one year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

In a June 2007 statement, the Veteran wrote that his left elbow would become enflamed while lifting heavy objects, resulting in excruciating pain. 

At the April 2011 Travel Board hearing, the Veteran testified that he would experience sharp pains in both elbows during his biweekly weight-lifting sessions. 

In an August 2011 VA medical examination report, the Veteran stated that the onset of his elbow pain was gradual. The Veteran stated that the left elbow symptoms were worse than the right, particularly in the region of the triceps insertion on the olecranon. The Veteran stated that the pain would increase with yardwork, with the left elbow pain measuring a seven on a scale of 10, and the right measuring a four on a scale of 10. The Veteran stated that his elbows would hurt every time he lifted or did yardwork. At the time of the interview, the Veteran indicated that he did not have any current elbow pain. The Veteran stated that the elbow pain would last for two hours and would be alleviated by over-the-counter medication. The Veteran stated that his elbows would not catch or lock, but would swell and get "hot." The Veteran indicated that this elbows would feel loose sometimes, particularly on the left. 

In examining the Veteran's elbows, the August 2011 VA examiner noted positive bilateral Tinel's over the ulnar nerves at the elbow with tingling into digits four and five. The VA examiner indicated that there was mild tenderness over both triceps insertions; tenderness over the medial epicondyle, left much greater than right; and tenderness at the local muscular attachments, left much greater than right. The VA examiner also indicated mild tenderness at the olecranon, left greater than right, without swelling. The VA examiner indicated that there was no elbow tenderness bilaterally with varus or valgus stress. Upon examination of the right elbow, flexion was to 125 degrees without pain; extension was to zero degrees with pain at zero degrees; pronation was to 80 degrees without pain; and supination was to 75 degrees without pain. Upon examination of the left elbow, flexion was to 125 degrees with pain at 125 degrees; extension was to minus 20 degrees with pain at minus 25 degrees; pronation was to 80 degrees without pain; and supination was to 65 degrees without pain. The VA examiner noted that there was no significant change in active range of motion following repeat testing times three against resistance and no additional loss of range of motion due to painful motion, weakness, impaired endurance, incoordination, or instability. 

After the examination, the August 2011 VA examiner ordered X-rays to be performed. In reviewing the September 2011 VA X-ray reports, the August 2011 VA examiner diagnosed bilateral olecranon enthesophytes, and ulnar neuritis (neuropathic pain) without focal sensory or motor abnormalities. The VA examiner noted no elbow instability. The VA examiner also reported that enthesophytes noted on the elbow X-rays involved the triceps tendons, but not the actual elbow joints and, therefore, the Veteran did not have degenerative joint disease of the elbows. The VA examiner noted that the Veteran's elbow disability would not affect his employment. 

In a November 2012 VA medical opinion, procured to reconcile the different diagnoses for the elbow disabilities, a VA clinician noted that the August 2011 VA examiner found that it was less likely than not that the Veteran's most recent X-rays were consistent with degenerative joint disease of the elbows. The VA clinician indicated that the Veteran's radiologic findings were consistent with enthesophytes of the bilateral Triceps Brachii tendons. The VA clinician explained that enthesophytes were defined as bony or calcification-like projections occurring along the tendonous or ligamentous portion at the attachments of muscle to capsular tissue or periosteum, the covering of bone. The VA clinician indicated that such soft tissue abnormalities were extracapsular rather than capsular and, therefore, less likely to be associated with bony changes in the joint space. The VA clinician indicated that the Veteran's joint space was preserved and without disease. Therefore, the VA clinician opined that it was less likely than not that the Veteran's current bilateral elbow disorder was degenerative. 

Therefore, the November 2012 VA clinician wrote that it was less likely than not that the Veteran's elbow conditions were directly linked to any multifactoral diagnoses (to include his status post subarachnoid hemorrhage condition or left shoulder condition) currently service-connected or non-service-connected. The VA clinician indicated that there was no clinical evidence or medical literature supporting such a linkage between these conditions and the Veteran's current elbow disorders. Moreover, the VA clinician stated that there was no subjective evidence in the service treatment records to assume a nexus between the Veteran's current elbow disorders and his service. Therefore, based on the entire record of evidence, the VA clinician stated that it was less likely than not that the Veteran's current elbow disorders were incurred, caused by, aggravated by, or related to any event occurring in service. The VA examiner than stated that the Veteran's current elbow conditions were a consequence of his normal aging process.

While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). As noted above, in the February 2006 VA examination report, a VA examiner diagnosed degenerative changes of the elbows. The Veteran currently is service-connected for degenerative changes of the elbows based entirely on the February 2006 VA examiner's diagnosis. Yet, the Board notes that the February 2006 VA examiner did not have the benefit of reviewing the most recent September 2011 VA X-ray reports. Having reviewed those X-rays, the November 2011 VA examiner indicated that the Veteran did not have degenerative changes of the elbows. Thereafter, in her November 2012 VA medical opinion, a VA clinician, having reviewed the entirety of the evidence, found that the Veteran did not have degenerative changes of the elbows. 

The November 2012 VA clinician also thoroughly explained that the Veteran's current elbow disorders were less likely than not related to service or to any service-connected disability. In this instance, considering the thoroughness of the VA clinician's findings, to include references to the record of evidence, both lay and medical, and the current medical literature, the Board finds the November 2012 VA clinician's opinion to have great probative value in this matter. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physician's access to a veteran's medical records).

The Board will not take any action to disturb the RO's award of service connection for degenerative changes of the elbows. Yet, based on the August 2011 VA medical examination report and the November 2012 VA clinician's opinion, the Board finds that the Veteran does not have degenerative changes of the elbows. Furthermore, although the Veteran experiences elbow disorder symptomatology, the Board notes that the evidence clearly indicates that these symptoms are related to non-service-connected disorders of the soft tissues, to include tendinitis. Soft-tissue disorders, unlike arthritic disorders, are not chronic diseases subject to presumptive service connection if manifested to a compensable degree within one year of the Veteran's service separation. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In the November 2012 VA medical opinion, the VA clinician thoroughly explained that the Veteran's soft tissue elbow disorders were less likely than not related to service or to any service-connected disability. The record contains no medical opinions suggesting that the Veteran's soft tissue elbow disorders were related to service. 

Therefore, although the Veteran experiences some limitation of extension of the elbow, the limitation of extension is related to a non-service-connected elbow disorder and not the Veteran's service-connected degenerative changes of the elbows. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board may not ignore medical evidence differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability when such appear in the record). As the evidence indicates that the Veteran does not degenerative changes of the right and left elbows, the evidence indicates that the Veteran does not have any symptomatology related to those disabilities, even though they are service-connected. As the Veteran's service-connected elbow disabilities are nonexistent and, therefore, asymptomatic, the Board must deny the Veteran's claim for increased ratings in excess of zero percent (noncompensable) for degenerative changes of the right and left elbows. 

The preponderance of the evidence is against the claims so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. 


Higher Initial Rating for Degenerative Arthritis of the
Left Shoulder

Currently, the Veteran is seeking a higher initial rating for his left shoulder disability in excess of zero percent (noncompensable) for the initial rating period prior to August 22, 2011, and in excess of 10 percent for the period from August 22, 2011. In this decision, the Board will grant the Veteran a 10 percent staged rating for the period from April 1, 2011, through August 21, 2011, and deny the Veteran's claims for higher initial ratings in excess of zero percent for the initial rating period prior to April 1, 2011, and in excess of 10 percent for the period from August 22, 2011. The Board has structured its analysis to reflect these decisions. 

For the entire initial rating period, the Veteran's left shoulder disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5203 (2012). 

As noted above, Diagnostic Code 5010 is the designation used to classify disabilities more nearly approximating arthritis due to trauma. However, the regulation at 38 C.F.R. § 4.71a, Diagnostic Code 5010 specifically states that disabilities classified as falling under that particular diagnostic code should be rated according to the criteria used in rating degenerative arthritis, found at Diagnostic Code 5003. The rating criteria for Diagnostic Code 5003 are listed previously. 

Diagnostic Code 5203 pertains to impairment of the clavicle or scapula with dislocation; nonunion with or without loose movement; or malunion. A 10 percent rating is assigned for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. A 20 percent rating is assigned where there is nonunion with loose movement or where there is dislocation of the clavicle or scapula. In the alternative, the disability may be rated on impairment of function of a contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203.

Diagnostic Code 5201 also is to be considered in rating shoulder disabilities. Under Diagnostic Code 5201, a 20 percent rating is warranted where motion of either arm is limited at shoulder level. 38 C.F.R. § 4.71a. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). 

Under 38 C.F.R. § 4.71, Plate I, full shoulder abduction and flexion is from zero to 180 degrees, with the shoulder level defined as 90 degrees. Normal internal and external rotation are from zero to 90 degrees in each plane of movement. 38 C.F.R. 
§ 4.71.

Prior to April 1, 2011

For the initial rating period prior to April 1, 2011, the Veteran contends that his left shoulder disability was more severe than reflected by the noncompensable (zero percent) rating assigned. Because the Veteran's left shoulder disability did not more nearly approximate the criteria for the next higher rating under the appropriate diagnostic code during the prior to April 1, 2011, the Veteran's claim will be denied.  

Reviewing the record of evidence for the initial rating period under appeal, in a February 2006 left shoulder X-ray report, a VA examiner noted minimal degenerative joint disease at the acromioclavicular and glenohumeral joint. 

In a February 2006 VA medical examination report, the Veteran reported experiencing soreness and stiffness in his left shoulder mostly when moving things or lifting. The Veteran stated that this soreness was noticeable after lifting weights in the gymnasium. The Veteran indicated that he had not experienced any shoulder weakness, reduced range of motion, or swelling. The Veteran stated that he also did not use a left shoulder brace. The Veteran indicated that he had experienced no difficulties at work, performing daily activities, or sleeping due to his left shoulder disorder. 

Upon examination, the February 2006 VA examiner noted that the Veteran's left shoulder exhibited no point tenderness and was symmetrical to the right. The VA examiner stated that he was unable to reproduce any pain in the shoulder. Upon examination, range of motion of the left shoulder was normal without any reproducible pain. The VA examiner noted no crepitus or popping in the shoulder. The diagnosis was degenerative arthritis, as noted on the X-ray report. The VA examiner stated that the Veteran's history was most consistent with tendinitis. 

In a January 2008 statement, the Veteran stated that he had pain in both shoulders that would interfere with his ability to complete daily tasks. The Veteran did not report any limitation of motion of the shoulders due to pain.

The Board finds that all evidence regarding the severity of the Veteran's left shoulder disability symptomatology for the initial rating period prior to April 1, 2011, to include the medical and lay evidence of record, is both competent and credible. The VA examination report of record were written by a VA examiner who indicated performing thorough a interview and examinations of the Veteran prior to writing diagnoses based on medical training. Moreover, the Veteran is competent to describe his left shoulder disability symptomatology and the Board finds no evidence that would cast doubt upon the credibility of his statements. 

The Board finds that, for the initial rating period prior to April 1, 2011, the Veteran's left shoulder disability symptomatology did not more nearly approximate that required for a next higher 10 percent evaluation under either Diagnostic Code 5203 or 5201. 38 C.F.R. § 4.71a. As noted above, in order to qualify for a next higher 10 percent rating under Diagnostic Code 5203, the Veteran's left shoulder symptomatology must more nearly approximate malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. In order to qualify for a next higher 20 percent rating under Diagnostic Code 5203, the Veteran's left shoulder symptomatology must more nearly approximate malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. Id. In this instance, the evidence indicates that the Veteran's left shoulder was symmetrical, without evidence of malunion or nonunion of the clavicle or scapula over this period. Moreover, the Veteran's left shoulder disability was not manifested by symptomatology more nearly approximating an objectively confirmed limitation of motion of the left shoulder due to swelling, muscle spasm, or painful motion, the criteria for a 10 percent rating under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the February 2006 VA medical examination report, the VA examiner specifically noted no objective evidence of reproducible shoulder pain upon examination, to include after repetitive motion, and no loss of function of the shoulder. In addition, the evidence of record for the period prior to April 1, 2011 does not indicate that the Veteran's left shoulder disability involved two or more major joints, or two or more minor joint groups. See id. 

The Board has considered the Veteran's reports of experiencing left shoulder pain during the period prior to April 1, 2011. As noted above, in statements to the February 2006 VA examiner and lay statements submitted to VA, the Veteran indicated that he experienced left shoulder pain that would interfere with his ability to complete tasks. Yet, the Board notes that the Veteran did not report which activities with which his shoulder pain would interfere. Moreover, the Veteran did not report how the pain would interfere with the functioning of his shoulder. For the initial rating period prior to April 1, 2011, to the extent the Veteran reports experiencing left shoulder pain, the objective evidence of record indicates such pain did not limit the Veteran's functional range of motion of the left shoulder to than the extent required for a compensable rating as noted above and, as such, cannot serve as a basis for an increased evaluation for orthopedic manifestations of the Veteran's service-connected left shoulder disability. See Mitchell v. Shinseki, 25 Vet. App. 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."); DeLuca, at 206. 

For the initial rating period prior to April 1, 2011, the disability picture for the Veteran's left shoulder disability does not more nearly approximate a next higher 10 percent rating under the applicable Diagnostic Codes. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. 

From April 1, 2011

For the initial rating period from April 1, 2011, to August 22, 2011, the Veteran contends that his left shoulder disability was more severe than reflected by the noncompensable (zero percent) rating assigned for that period. Because the evidence indicates that the Veteran experienced functional limitation of motion of the left shoulder due to pain during this period, as objectively noted in a subsequent August 21, 2011 VA medical examination report, the Board will partially grant the Veteran's claim, assigning a 10 percent rating, but no greater than 10 percent, for the initial rating period from April 1, 2011, to August 21, 2011. For the initial rating period from August 22, 2011, the Veteran also contends that his left shoulder disability was more severe than reflected by the 10 percent rating assigned for that period. Because the Veteran's left shoulder disability did not more nearly approximate the criteria for the next higher rating under the appropriate diagnostic codes during the period from August 22, 2011, that aspect of the Veteran's claim will be denied.  

Reviewing the evidence of record, at the April 1, 2011 Travel Board hearing, the Veteran testified that he would experience pain in the left shoulder while lifting objects above his head. The Veteran specifically stated that the range of motion of his left shoulder was more limited than in his right due to pain. 

In an August 22, 2011 VA medical examination report, the Veteran indicated that he experienced left shoulder pain a couple of times per week, depending on his activities. The Veteran stated that the pain would be worse after pulling weeds, sometimes measuring a four on a scale of 10. During the examination, the Veteran stated that the pain was a two on a scale of 10. The Veteran stated that he experienced stiffness and some weakness in his shoulder, but no locking, swelling, or instability.

Upon examination, the August 2011 VA examiner noted that the Veteran demonstrated five out of five strength in the bilateral shoulder abductors. The VA examiner noted that the shoulder was normally aligned and symmetric without muscle atrophy. The VA examiner noted no scapular winging, swelling, or instability. The VA examiner indicated that there was tenderness to palpation over the lesser and greater tubercles, bicipital tendon, and the subacromial region. The VA examiner indicated that Neer's, empty can, Speed's, and scarf tests were all mildly positive. Upon testing, flexion was to 155 degrees with pain at 125 degrees; extension was to 35 degrees with pain at 35 degrees; abduction was to 165 degrees with pain at 165 degrees; adduction was to 30 degrees with pain at 30 degrees; internal rotation was to 50 degrees without pain; and external rotation was to 70 degrees with pain at 70 degrees. The VA examiner noted that there was no significant change in active range of motion following repeat testing times three against resistance and so no additional loss of range of motion due to painful motion, weakness, impaired endurance, incoordination, or instability. 

After the examination, the August 2011 VA examiner diagnosed left shoulder degenerative joint disease and impingement of the left shoulder without evidence of instability. The VA examiner noted that the Veteran's left shoulder disability would not affect his employment. 

The Board finds that all evidence regarding the severity of the Veteran's left shoulder disability symptomatology for the initial rating period from April 1, 2011, to include the medical and lay evidence of record, is both competent and credible. The VA medical examination report of record was written by a VA examiner who indicated performing a thorough interview and examination of the Veteran prior to writing diagnoses based on medical training. Moreover, the Veteran is competent to describe his left shoulder disability symptomatology and the Board finds no evidence that would cast doubt upon the credibility of his statements. 

The Board finds that, for the initial rating period from April 1, 2011, to August 21, 2011, the Veteran's left shoulder disability symptomatology more nearly approximated that required for the next higher 10 percent evaluation under Diagnostic Code 5010. 38 C.F.R. § 4.71a. Specifically, for that period, the Board finds that the Veteran's left shoulder disability was manifested by symptomatology more nearly approximating limitation of flexion of the shoulder to 125 degrees due to pain. At the April 1, 2011 Travel Board hearing, the Veteran specifically testified that he experienced a limitation of range of motion of the shoulder due to pain. The Board notes that the Veteran's testimony was sufficiently corroborated by the findings of the August 2011 examiner, less than five months after the Veteran's testimony. 

For the period from April 1, 2011, the Board finds that the Veteran's left shoulder disability did not more nearly approximate the criteria for the next higher 20 percent rating under the appropriate diagnostic codes. 

As noted above, in order to qualify for a next higher 20 percent rating under Diagnostic Code 5203, the Veteran's left shoulder symptomatology must more nearly approximate nonunion of the clavical or scapula with loose movement or dislocation of the clavicle or scapula. Id. In this instance, for the period from April 1, 2011, the evidence indicates that the Veteran's left shoulder was symmetrical, without evidence of malunion or nonunion of the clavicle or scapula. Moreover, the record for the period from April 1, 2011 contains no evidence indicating that the motion of the Veteran's left arm is limited to shoulder level by the left shoulder disability, as required for a 20 percent rating under Diagnostic Code 5201. Id. 

For the period from April 1, 2011, the Board has considered the Veteran's reports of left shoulder pain noted in both his lay statements and the August 2011 VA medical examination report. As noted above, the Veteran reported experiencing pain of the left shoulder that limited the motion of his left arm. Yet, the presence of pain, fatigue, weakness, and lack of endurance are contemplated in the aforementioned rating criteria. What is of equal importance is the remaining functional use. See Deluca, 8 Vet. App. at 206-07. The Veteran's pain upon use of the left shoulder has been noted to cause a limitation of motion of the arm to shoulder level as required for the next higher 20 percent rating under Diagnostic Code 5201.  

Therefore, resolving all doubt in the Veteran's favor, for the initial rating period from April 1, 2011, to August 22, 2011, the Board finds that the disability picture for the Veteran's left shoulder disability more nearly approximated that required for the next higher 10 percent rating under Diagnostic Code 5010-5203. See 38 U.S.C.A. § 5107(b); Gilbert, at 54-56. For the initial rating period from April 1, 2011, to include the period from August 22, 2001, the disability picture for the Veteran's left shoulder disability has not more nearly approximated a rating in excess of 10 percent under any applicable diagnostic code. 38 C.F.R. § 4.7. The preponderance of the evidence is against that aspect of the Veteran's claim so the benefit of the doubt rule is not applicable. See id.

Extraschedular Ratings

The Board has considered whether referral for consideration of respective extraschedular ratings is warranted for the Veteran's cognitive disability, seizure disability, degenerative joint disease of the lumbosacral spine, headaches, degenerative changes of the right and left elbows, and degenerative arthritis of the left shoulder. In exceptional cases, an extraschedular rating may be provided. 
38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, specifically a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. 

Regarding the Veteran's service-connected cognitive disability, turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's cognitive disability are specifically contemplated by the schedular rating criteria (38 C.F.R. §§ 4.124a, 4.130, Diagnostic Code 8007-9326), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Codes 8007 and 9326 specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for the entire increased rating period under appeal, the Veteran's cognitive disability has been manifested by symptomatology more nearly approximating occupational and social impairment with reduced reliability and productivity due to impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks). The schedular rating criteria specifically provide for ratings based upon occupational and social impairment related to cognitive disorders. 

Regarding the Veteran's service-connected seizure disability, turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's seizure disability are specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.124a, Diagnostic Code 8007-8912), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Codes 8007 and 8912 specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for the entire increased rating period under appeal, the Veteran's seizure disability has been manifested by minor seizures occurring approximately three to four times per week. The schedular rating criteria specifically provide for ratings based upon the severity and frequency of seizures.

Regarding the Veteran's service-connected degenerative joint disease of the lumbosacral spine, turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's lumbosacral spine disability are specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.71a, Diagnostic Codes 5010-5237 and 5003-5242), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Codes 5003 and 5010 (sharing the same criteria), and Diagnostic Codes 5237 and 5242 (also sharing the same criteria) specifically provide for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, considering the evidence, for the increased rating period prior to August 22, 2011, the Veteran's degenerative joint disease of the lumbosacral spine was not manifested by any functional loss of the lumbosacral spine. For the increased rating period from August 22, 2011, the Veteran's degenerative joint disease of the lumbosacral spine was manifested by muscle spasms severe enough to result in an abnormal gait and spinal contour. The schedular rating criteria specifically provide for ratings based upon the limitation of function of the spine, and the presence and severity of muscle spasms.

Regarding the Veteran's service-connected headache disability, turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's headaches are specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.124a, Diagnostic Code 8007-8100), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Codes 8007 and 8100 specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for the entire increased rating period under appeal, the Veteran's headache disability was not manifested by prostrating attacks. The schedular rating criteria specifically provide for ratings based upon the frequency of prostrating attacks. 

Regarding the Veteran's service-connected left shoulder disability, turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the left shoulder disability are specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.71a, Diagnostic Code 5201-5003), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Codes 5201-5003 specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for the initial rating period prior to April 1, 2011, the Veteran's degenerative arthritis of the left shoulder was asymptomatic, causing no impairment of the function of the shoulder. For the initial rating period from April 1, 2011, the Veteran's degenerative arthritis of the left shoulder was manifested by otherwise noncompensable limitation of motion of the left shoulder due to pain. The schedular rating criteria specifically provide for ratings based upon impairment of function of the shoulder due to symptoms such as pain. 

As the schedular evaluations contemplate the respective disabilities and symptomatologies of the Veteran's cognitive disability, seizures, degenerative joint disease of the lumbosacral spine, headaches, and degenerative arthritis of the left shoulder, the Board need not determine whether there are exceptional disability pictures that exhibit other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's cognitive disability, seizures, degenerative joint disease of the lumbosacral spine, headaches, and degenerative arthritis of the left shoulder, the Board is not required to remand these issues to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Regarding the Veteran's service-connected degenerative changes of the bilateral elbows, the record indicates that the Veteran experiences some pain upon use of the left elbow. Yet, as explained thoroughly above, the elbow disorder symptomatology that the Veteran is experiencing is caused by soft tissue disorders that are not related to the Veteran's service-connected degenerative changes of the bilateral elbows. See Mittleider, 11 Vet. App. at 182. Referral for extraschedular evaluation of those  disorders is not warranted. 


ORDER

Service connection for right ear hearing loss is denied. 

An increased rating in excess of 50 percent for status post subarachnoid hemorrhage with residual cognitive disorder is denied. 

An increased rating in excess of 20 percent for status post subarachnoid hemorrhage with residual seizure disorder is denied. 

An increased rating for degenerative joint disease of the lumbosacral spine in excess of zero percent (noncompensable) prior to August 22, 2011; and in excess of 20 percent from August 22, 2011 is denied. 

A 10 percent rating for status post subarachnoid hemorrhage with residual headaches is granted. 

A higher initial (compensable) rating percent for degenerative changes of the right elbow is denied. 

A higher initial (compensable) rating percent for degenerative changes of the left elbow is denied. 

For the initial rating period prior to April 1, 2011, a higher initial (compensable) rating for degenerative arthritis of the left shoulder is denied. 

For the initial rating period from April 1, 2011, to August 21, 2011, a higher initial rating of 10 percent, but no greater, for degenerative arthritis of the left shoulder is granted. 

For the initial rating period from August 22, 2011, a higher initial rating in excess of 10 percent for degenerative arthritis of the left shoulder is denied. 



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs