Citation Nr: 1325819 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-36 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a neurogenic bladder. 2. Entitlement to service connection for a sleep disorder. 3. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative disc disease (DDD) of the thoracolumbar spine with degenerative arthritis. 4. Entitlement to a disability evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to an increased disability evaluation for residuals of a traumatic brain injury (TBI), to include memory impairment, chronic headaches, and tinnitus, status post improvised explosive device (IED) blast concussion, evaluated as 10 percent disabling prior to October 23, 2008, and as 40 percent disabling from October 23, 2008, forward. 6. Entitlement to a separate evaluation for lower extremity neuropathy. REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from February 1980 to February 1983, and from July 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) from November 2008, August 2010, February 2010, and November 2011 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for lower extremity neuropathy, a sleep disorder and to an increased disability evaluation for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. A chronic neurogenic bladder was not manifest during service or within one year of separation. The appellant does not have a neurogenic bladder or a bladder disability of any kind. 2. Throughout the initial rating period on appeal, the Veteran's thoracolumbar spine disability has been manifested by forward flexion to no less than 80 degrees, accounting for pain on motion and after repetition; combined range of motion to no less than 215 degrees, accounting for pain on motion and after repetition; no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour; and no incapacitating episodes. 3. At no time during the appeal period has the Veteran been diagnosed with multi-infarct dementia due to his head injury. 4. Prior to October 23, 2008, the Veteran's residuals of TBI were manifested by purely subjective complaints, including headaches, dizziness, memory loss, and insomnia, with no neurological disabilities associate with the TBI. 5. From October 23, 2008, the Veteran's residuals of TBI have been manifested by complaints of mild loss of memory, attention, concentration, or executive functions; social interaction which is occasionally inappropriate; three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships; one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; mildly impaired judgment; full orientation; normal motor activity; normal visual spatial orientation; ability to communicate by and comprehend spoken and written language; and no impairment of consciousness; as well as separate diagnoses and symptoms of tinnitus and headaches. CONCLUSIONS OF LAW 1. The criteria for service connection for a neurogenic bladder have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1117, 1131, 1137, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for an initial evaluation in excess of 10 percent for DDD of the thoracolumbar spine with degenerative arthritis have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012). 3. The criteria for a disability evaluation in excess of 10 percent for residuals of a TBI have not been met for the rating period prior to October 23, 2008. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8045- 9304 (2008). 4. The criteria for a disability evaluation in excess of 40 percent for residuals of a TBI have not been met for the rating period from October 23, 2008, forward. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8045 (2012). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate noncompensable disability rating for migraine headaches were met for the rating period from October 23, 2008, forward. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012). 6. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating for tinnitus were met for the rating period from October 23, 2008, forward. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Neurogenic Bladder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If the claimed disability at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A neurogenic bladder falls within the concept of an organic disease of the nervous system. Therefore, the Board must consider 38 C.F.R. § 3.303(b) and the presumption under 38 U.S.C.A. § 1112. 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a neurogenic bladder that is related to active service. Specifically, he avers that he has had an increase in urinary frequency ever since he was hit with an IED explosion while stationed in Iraq in 2007. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that no relevant injury or disease occurred during either period of active service, and that the weight of the evidence demonstrates that symptoms of a neurogenic bladder or other genitourinary problems were not chronic during either period of active service. The January 1983 and August 2007 separation examination reports are negative for any genitourinary problems. Indeed, the Veteran checked "no" next to "frequent or painful urination" on his January 1983 Report of Medical History and examination of the genitourinary system was marked as normal. Periodic National Guard examinations from the period between the Veteran's periods of active service are all negative for any report of genitourinary problems. Moreover, despite reporting other medical problems, he did not report any genitourinary problems at separation in August 2007. In short, there are no complaints, symptoms, findings, history, diagnoses, or treatment of neurogenic bladder or other genitourinary problems during active service. The Board is fully aware of the applicability of 38 U.S.C.A. § 1154(b). Even when we assume that he had bladder manifestations coinciding with combat, section 1154(b) still requires the existence of current disability and a nexus (lay or medical) to service. Assuming that a neurogenic bladder is an organic disease of the nervous system, such was not diagnosed, noted, or identified during service. See, 38 C.F.R. § 3.303(b). In addition, the normal and silent service records establish that he did not have characteristic manifestations of the disease process during service. The Board next finds that the weight of the evidence demonstrates that symptoms of a neurogenic bladder have not been continuous since separation from the final period of active service in September 2007. Following service separation in September 2007, the evidence of record does not show any complaints, diagnosis, or treatment for a neurogenic bladder or any other genitourinary problem until April 2008, when the Veteran filed his claim for service connection for a neurogenic bladder, stating that he experienced urgency that required elimination between six and seven times per day during waking hours. The absence of post-service complaints, findings, diagnosis, or treatment for seven months after service separation until April 2008 is one factor that tends to weigh against a finding of continuous symptoms of neurogenic bladder after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence showing that symptoms of a neurogenic bladder have not been continuous since service separation includes a May 2008 VA treatment note indicating the Veteran denied urinary frequency. Moreover, the Veteran denied incontinence, urgency, urinary retention, and the need to catheterize or wear pads at the May 2010 VA examination. Thus, the Veteran's own statements made in the context of seeking medical treatment provide probative evidence against his claim. With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had a neurogenic bladder since separation from service in September 2007, the Board finds that, while the Veteran is competent to report the onset of neurogenic bladder symptoms, his recent report of continuous neurogenic bladder symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to continuous neurogenic bladder symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are normal when examined, are negative for any complaints, findings or diagnoses of neurogenic bladder or genitourinary problems, the lack of any post-service documentation of treatment or diagnoses of a neurogenic bladder, and the Veteran's claim for service connection for other disabilities in September 2007 that did not claim or even mention symptoms of a neurogenic bladder. Here, we are not presented with silence alone. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection for multiple disorders in September 2007, but did not mention any genitourinary symptoms at that time. This suggests to the Board that there was no pertinent genitourinary disability symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a genitourinary disability, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the lack of genitourinary symptomatology at the time he filed the claim. For these reasons, the Board finds that weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding in-service chronic neurogenic bladder symptoms and post-service neurogenic bladder symptoms. The Board further finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of neurogenic bladder or other genitourinary disability. A VA examination and opinion were obtained in September 2008. The Veteran reported that he experienced urinary urgency, weak or intermittent stream, and dribbling. His daytime voiding interval was between one and two hours, and he usually had one voiding episode per night. He also stated that he dribbled on himself if he did not make it to the bathroom on time, but he did not wear absorbent material. The VA examiner assessed polyuria by history only, and opined that the Veteran did not have a chronic disability due to urinary frequency. The examiner reasoned that urinated six to seven times per day and occasionally once a night did not constitute a disability. Moreover, he explained that urinating frequently can depend on fluid intake during the day along with caffeine. The Veteran's nerve conduction studies were normal, the MRI of the brain was unremarkable, and urinalysis and labs had all been normal up to this point. Finally, the examiner noted that there was no evidence in the medical records of a prior diagnosis of neurogenic bladder. The 2008 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the medical records, conducted a thorough examination of the Veteran, and fully articulated the opinion. There are no favorable medical opinions of record, and post-service treatment records are negative for a diagnosis or treatment of neurogenic bladder or any other genitourinary condition. Accordingly, in light of the September 2008 VA opinion and negative post-service treatment records, the greater weight of the probative evidence is against finding that the Veteran has a current diagnosis of neurogenic bladder or other genitourinary disability. As a result, the claim must be denied. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record establishes that he does not have a current disability or diagnosis, as is the case here, that holding would not apply. In addition, because the evidence establishes that he does not have a disability, the law and regulations regarding Gulf War illness is not applicable. Even when the Board considers the provisions of 38 U.S.C.A. § 1154(b) and the lay evidence of what happened during service is accepted, there still must be evidence of a current disability (impairment) and disease. Here, the most probative evidence establishes that there is no organic cause for his complaints and the examiner has determined that his complaints do not rise to the level of disability. In this case, the record of evidence indicates that the Veteran did not incur a neurogenic bladder or other genitourinary disability during service, has not experienced continuous neurogenic bladder symptomatology since service, and that he does not have a current diagnosis of neurogenic bladder or other genitourinary disability. For these reasons, service connection for a genitourinary disability, to include a neurogenic bladder, must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for a neurogenic bladder, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As is the case with the TBI evaluation, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, 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 rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated 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 evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. The Veteran's service-connected residuals of a TBI have been evaluated under Diagnostic Code 8045, found in 38 C.F.R. § 4.124a. During the course of the appeal, the regulations for the evaluation of brain disease due to trauma or TBI under Diagnostic Code 8045 were amended, effective October 23, 2008. See 73 Fed. Reg. 54,693 - 54,708 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Therefore, in this case, prior to October 23, 2008, the Board may apply only the previous version of the rating criteria. As of October 23, 2008, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. Under the previous regulation, Diagnostic Code 8045 provides for the evaluation of brain disease due to trauma. 38 C.F.R. § 4.124a (2008). This diagnostic code specifies that purely neurological disabilities are rated under the applicable diagnostic code. Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma) and may not be combined with any other rating for a disability due to brain trauma. A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 may not be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Id. Under the amended regulation, Diagnostic Code 8045 again provides for the evaluation of TBI. 38 C.F.R. § 4.124a (effective October 23, 2008). However, the amended regulations provide for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Id. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. Id. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings for Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified." Id. VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed in 38 C.F.R. § 4.124a , Diagnostic Code 8045 that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a fifth level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A Veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his disability has worsened since the last review. (Parenthetically, the Board notes that no such request has been made in this case.) VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" provides as follows: Facets of cognitive impairment and other residuals of TBI not otherwise classified: Memory, attention, concentration, executive functions 0 - No complaints of impairment of memory, attention, concentration, or executive functions. 1 - A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. 2 - Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. 3 - Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Total - Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Judgment 0 - Normal. 1 - Mildly impaired judgment. For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. 2 - Moderately impaired judgment. For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. 3 - Moderately severely impaired judgment. For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. Total - Severely impaired judgment. For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Social interaction 0 - Social interaction is routinely appropriate. 1 - Social interaction is occasionally inappropriate. 2 - Social interaction is frequently inappropriate. 3 - Social interaction is inappropriate most or all of the time. Orientation 0 - Always oriented to person, time, place, and situation. 1 - Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. 2 - Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation. 3 - Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Total - Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Motor activity (with intact motor and sensory system) 0 - Motor activity normal. 1 - Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). 2 - Motor activity mildly decreased or with moderate slowing due to apraxia. 3 - Motor activity moderately decreased due to apraxia. Total - Motor activity severely decreased due to apraxia. Visual spatial orientation 0 - Normal. 1 - Mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system). 2 - Moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS (global positioning system). 3 - Moderately severely impaired. Gets lost even in familiar surroundings, unable to use assistive devices such as GPS (global positioning system). Total - Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms 0 - Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. 1 - Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. 2 - Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral affects 0 - One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects. 1 - One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. 2 - One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. 3 - One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Communication 0 - Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. 1 - Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. 2 - Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. 3 - Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs. Total - Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Consciousness Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. As above, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartright, 2 Vet. App. at 25 ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales, 218 F.3d at 1380-81; Timberlake, 14 Vet. App. at 128-30. Thoracolumbar Spine Initial Disability Rating Analysis In this case, service connection for DDD of the thoracolumbar spine with degenerative arthritis was granted in the August 2010 rating decision that is the subject of this appeal. An initial 10 percent disability rating was assigned under the provisions of 38 C.F.R. § 4.71a, DC 5242. The Veteran contends that his thoracolumbar spine disability warrants a higher initial rating. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent for service-connected DDD of the thoracolumbar spine for the entire initial rating period on appeal. For the entire rating period, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected thoracolumbar spine disability did not manifest forward flexion of the thoracolumbar spine 60 degrees or less, 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, as required for an evaluation in excess of 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, for an evaluation in excess of 10 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The Veteran was afforded a VA general medical examination in November 2007. He reported low back pain when he sat in his security truck. He speculated that the pain was caused by the inability to recline in his seat. He also reported that the pain radiated into both legs. He took Tylenol for the pain. He reported flare-ups of pain triggered by bending and lifting objects; these flare-ups subsided on their own after one to two days, occurred weekly, and were moderate in severity. During flare-ups, the Veteran stated he limited his activities. The Veteran denied any incapacitating episodes in the last year. On physical examination in November 2007, there was tenderness of the lumbar spine, but no ankylosis. Sensory and motor functioning in both the upper and lower extremities was intact. Deep tendon reflexes were also normal in the lower extremities. A straight leg raising test was positive. There was no spasm, atrophy, guarding, or weakness. Gait was normal, and there was no lumbar lordosis, scoliosis, or reverse lordosis. Active and passive flexion was to 90 degrees, with pain beginning at 55 degrees of flexion. Extension was to 22 degrees with pain throughout the motion. Left lateral flexion was from 0 to 15 degrees, with pain throughout the motion, and right lateral flexion was from 0 to 25 degrees, with pain throughout the motion. There was pain on active and passive motion, and after repetitive use. However, there was no additional loss of motion after repetitive use, except for right lateral flexion, which was limited to 20 degrees after repetition. Left lateral rotation was to 35 degrees, with no pain on either active or passive motion or after repetition, and right lateral rotation was to 33 degrees, with pain on active and passive motion and after repetition, but no additional loss of motion after repetition. X-rays revealed moderate DDD. The VA examiner opined that the thoracolumbar spine disability would prevent chores, exercise, and sports, have moderate effects on shopping, traveling, dressing, and toileting, and no effects on recreation, feeding, bathing, and grooming. A March 2008 VA treatment note indicates the Veteran denied any numbness or weakness of the extremities. The Veteran was afforded another VA examination in May 2010. The VA examiner observed that the Veteran ambulated without an assistive device, and moved, sat, and stood up without difficulty. He reported back pain that was present all day and was sharp in character and moderate in intensity. He stated he had not been ordered to bed rest by a physician. He reported flare-ups that were mild in severity, occurred frequently, and lasted between one-quarter to one-half of a day. On physical examination, there was loss of normal lumbar lordosis, but no spasm or tenderness. Flexion was to 80 degrees, extension was to 20 degrees, right lateral flexion was to 25 degrees with pain at the end of motion, left lateral flexion was to 30 degrees, and bilateral lateral rotation was to 30 degrees. Range of motion and function of the spine were not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use. Muscle strength of the lower extremities was normal, as was gait. Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial rating in excess of 10 percent for a thoracolumbar spine disability is not warranted for any period, as the requirements of forward flexion of the thoracolumbar spine 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes of intervertebral disc syndrome of at least 2 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, DCs 5235-5243. Flexion, at worst, has been limited to 80 degrees, even with pain and following repetition. Combined range of motion has been no worse than 215 degrees. Moreover, there was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour at either the 2007 or 2010 VA examination. Finally, the Veteran has denied any incapacitating episodes, nor does the evidence suggest that he has been ordered to bed rest by a physician. In reaching its finding that the evidence did not show flexion to 60 degrees or combined range of motion to 120 degrees or less for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 10 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the subjective evidence of pain on range of motion testing at both the 2007 and 2010 VA examinations, the Veteran's report of mild to moderate weekly flare-ups of pain, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the 2007 VA examiner noted subjective evidence of pain on active and passive range of motion testing, but that function and motion were not additionally limited after repetition; thus, even if the pain on flexion, extension, and lateral flexion are taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating category. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain on active and passive motion. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion to 60 degrees or less, combined range of motion 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour) such as to enable a finding that the disability picture more nearly approximates the next-higher, 20 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. While the Board understands the Veteran's central concern that he has a debilitating back disability, it is important for the Veteran to understand that a 10 percent evaluation indicates a significant impact on the Veteran's functional ability. Such a disability evaluation by VA recognizes the Veteran's painful limited motion, indicating generally a ten percent reduction in the Veteran's ability to function due to his back pain. The critical question in this case, however, is whether the problems the Veteran has believably cited meet the next highest level under the rating criteria. For reasons cited above, they do not, at this time. Without taking into consideration the problems associated with this disability, the current evaluation could not be justified, let alone a higher evaluation. The Board notes the pleadings to the effect that the appellant has flare-ups. Clearly, the pleadings must be considered. However, the pleadings are remarkably lacking in detail regarding functional impact. The representative, who has experience, has not submitted any probative evidence regarding the claimed flare-ups. When we compare the repeated objective findings against the vague pleadings, we conclude that the objective evidence is far more probative. The Board has also considered the advice of the Court that the VA should consider an examination during a flare-up. However, the lay evidence is so lacking in detail that scheduling an examination during an alleged flare-up would be impossible. The Court has never demanded an exercise in futility or required the VA to attempt to catch lightning in a bottle. If there were evidence of additional functional impairment, we are sure the attorney would have known to submit that evidence. As discussed above, the criteria for the currently-assigned 10 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, 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. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an initial evaluation higher than 10 percent are not met, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 20 percent, rating category - flexion to 60 degrees or less or combined range of motion to 120 degrees of less - even when taking into account additional loss of motion due to DeLuca factors. Moreover, even with such factors, there is no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. For these reasons, the Board finds that an initial disability rating in excess of 10 percent is not warranted for any period. Next, the Board has considered whether an initial rating in excess of 10 percent is warranted under Diagnostic Code 5243 based on incapacitating episodes. As previously mentioned, Diagnostic Code 5243 deals with IVDS, which can include degenerative disc disease. However, in order to meet the criteria for a compensable rating under this diagnostic code, the evidence must show that a physician ordered bed rest to treat the disorder. In this case, the Veteran has consistently denied any incapacitating episodes due to his low back disability. Moreover, there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under DC 5243. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating. In this regard, the RO rated the Veteran's back disability under Diagnostic Code 5242, which addresses degenerative arthritis of the spine. Diagnostic Code 5242 is related to DC 5003, which also addresses degenerative arthritis. In this case, the maximum evaluation possible under DC 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, it does not allow for a higher evaluation. Diagnostic Code 5237 is potentially applicable as it addresses lumbosacral strain. However, disabilities evaluated under this code are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. There are no other applicable codes available for consideration. The Board has also contemplated whether any separate evaluations are applicable here for additional disability or neurological disorders associated with the service-connected back disability. However, other than possible lower extremity neuropathy there have been no other reports of other disabilities associated with the back disability. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 10 percent for DDD of the thoracolumbar spine for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Residuals of a TBI Disability Rating Analysis Initially, the Board notes that the Veteran suffered a concussion in July 2007 while stationed in Iraq when his vehicle was struck by an IED. He initially felt confused and disoriented, but denied loss of consciousness. The Veteran's service-connected residuals of a TBI were rated as 10 percent disabling from prior to October 23, 2008, and as 40 percent disabling from October 23, 2008 (the date the amendments described above became effective), forward, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045. As discussed in detail above, the regulations pertaining to evaluation of residuals of TBI were amended, effective from October 23, 2008. Disability Rating Prior to October 23, 2008 The Board has first examined the lay and medical evidence pertinent to the period on appeal prior to October 23, 2008, to determine if an evaluation in excess of 10 percent is warranted under the pre-amendment version of Diagnostic Code 8045. The Veteran was afforded a VA neurological examination in November 2007. He reported chronic headaches since the date of his TBI in July 2007. He stated the headaches bothered him all day and night and were associated with nausea. Further, most attacks were prostrating and lasted for hours. Neurological examination was normal, as was a CT scan of the brain with the exception of chronic sinus disease. The VA examiner assessed migraine headaches. The Veteran was also afforded a VA general medical examination in November 2007. He reported headaches lasting for two to three hours, sometimes associated with nausea, triggered by loud noise. The VA examiner assessed a head concussion as a residual of the TBI, noting that the Veteran was mainly affected in terms of memory loss. The Veteran was afforded a VA examination specific to his TBI in December 2007. Since the TBI, he reported seven to eight headaches per month, sometimes associated with nausea. Each headache lasted several hours, and he sometimes awoke at night because of them. In addition, he reported episodes of dizziness when driving or walking. He had numbness in his hands associated with weakness when lifting objects. He reported daytime fatigue despite getting a good night's sleep, and memory lapses, requiring constant reminders during the day. He had decreased appetite, increased urination, increased anxiety, irritability, avoidance of crowds, and social isolation, vision problems, hearing problems, and hypersensitivity to sound. On physical examination, motor functioning of the extremities was normal, muscle tone and reflexes were normal, sensory functioning was normal, gait was normal, there were no cerebellar signs, no deficits in the autonomic nervous system, cranial nerves were intact, no abnormalities of vision or skin, and no endocrine dysfunction. The VA examiner assessed a TBI with concussion, mild, with residuals of chronic headaches. In January 2008, the Veteran had a VA neurology consultation for his headaches. He reported that the headaches started within one hour of the IED explosion in service. The location was in the right frontal area. He stated he had headaches daily and that they lasted all day, although the intensity waxed and waned. After conducted a neurological examination, the VA clinician concluded that the Veteran had a history of headaches since the IED explosion in 2007 with a noncontributory neurological examination. The Veteran's history was consistent with post-traumatic migraine headaches without aura. The clinician recommended that the Veteran decrease his caffeine intake. The Veteran also underwent a second level evaluation for his TBI in January 2008. The VA clinician assigned scores to the Veteran's neurobehavioral symptoms as follows: feeling dizzy - moderate (2); loss of balance - moderate (2); poor coordination/clumsy - moderate (2); headaches - severe (3); nausea - moderate (2); visions problems - mild (1); sensitivity to light - severe (3); hearing difficulty - severe (3); sensitivity to noise - severe (3); numbness or tingling - moderate (2); change in taste or smell - none (0); loss of appetite - severe (3); poor concentration - moderate (2); forgetfulness - moderate (2); difficulty making decisions - moderate (2); slowed thinking and difficulty getting organized - mild (1); fatigue - moderate (2); difficulty falling or staying asleep - severe (3); feeling anxious or tense - very severe (4); feeling depressed/sad - moderate (2); irritability - severe (3); poor frustration tolerance - severe (3). In the past 30 days, the Veteran reported that these symptoms had interfered with life severely, in that he became irritated when dealing with people/crowds. A May 2008 VA treatment note indicates the Veteran's headaches had almost completely resolved with medication, but that his memory remained an issue. Based on the foregoing, the Board finds that the weight of the evidence is against an evaluation in excess of 10 percent for residuals of a TBI for the rating period prior to October 23, 2008. No neurological disabilities were found, and the Veteran's complaints consisted purely of subjective complaints, including headaches, dizziness, memory loss, and insomnia. As previously noted, prior to the October 23, 2008 amendments, Diagnostic Code 8045 provided that purely subjective complaints such as headache, dizziness, and insomnia are to be rated as 10 percent disabling and no more under Diagnostic Code 9304, which addresses dementia due to head trauma. Diagnostic Code 8045 additionally states that ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. In this case, there has been no diagnosis of multi-infarct dementia. Thus, Diagnostic Code 8045 does not allow for a disability rating in excess of 10 percent for any part of the rating period on appeal prior to October 23, 2008. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). There are no other applicable diagnostic codes that would allow for a disability rating in excess of 10 percent prior to October 23, 2008. For these reasons, the Board finds that the weight of the evidence is against a finding of a disability evaluation in excess of 10 percent for residuals of a TBI for the rating period prior to October 23, 2008. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Disability Rating from October 23, 2008, Forward Next, the Board has considered the evidence pertinent to the rating period on appeal from October 23, 2008, forward, to determine whether a disability rating in excess of 40 percent is warranted under the amended regulations for evaluating residuals of TBI. The Board notes that it has considered the rating criteria under the pre-amendment regulations, but that the new regulation is more favorable to the Veteran. A December 2008 VA treatment note indicates the frequency of the Veteran's headaches had decreased. A July 2009 VA treatment note indicates the Veteran had to take a break from attending school to care for his mother-in-law, but that he currently wished to start school again as well as look for jobs. At a December 2009 VA psychological examination, the Veteran reported that he could not sleep well at night. For instance, the night prior, he only got two hours of sleep. He stated he had nightmares about being on a convoy that woke him up, and then he was unable to fall back asleep. He currently lived with his wife, grandson, and mother-in-law, who has dementia. He stated that he got up when his wife did at 5:30 am, showered, and helped his grandson get ready for the day. He then took care of his mother-in-law all day, making sure that she took her medication and changing her diaper. He stated that he had to write down his tasks or else he would forget what he had to do. He said he was also going to school at the time. He stated he did not keep up with old friends, and did not have anyone over to socialize. He did not go to community events or church because of crowds. The VA examiner noted that the Veteran's long-term memory was good, but in terms of short-term memory, his wife had to write things down or he would forget what to do. The VA examiner further noted that the sleep disorder (difficulty falling and staying asleep) the Veteran reported was one of the symptoms of PTSD. The Veteran was afforded a VA examination to evaluate the residuals of his TBI in May 2010. The Veteran reported ongoing headaches, dizziness, lack of strength, poor short-term memory, and that he was easily awoken. His wife stated that she would send him to the store with a list, but that he would come back with only half of the items on the list. She also stated that he had what appeared to be anxiety attacks, where he became very nervous and restless after hearing loud noises or being in crowds. Specifically, the Veteran reported headaches on a daily basis, moderate to severe in nature, and lasting all day. He had dizziness four or five times per week, and weakness of the right arm. He had difficulty staying asleep on a nightly basis, and had resulting fatigue that was moderately severe. He stated that he felt ill with malaise three or four times per week. Other than being unable to walk in a straight line, he reported no difficulty with mobility. In terms of cognitive problems, he reported decreased attention, difficulty concentrating, difficulty with executive functioning and processing information, difficulty setting goals and planning, difficulty organizing and prioritizing, difficulty self-monitoring, difficulty problem-solving, and problems with judgment, decision-making, and spontaneity. He further reported difficulty with speech and problems with enunciation. He reported getting diarrhea twice a week, but denied bladder problems. He reported mood swings, anxiety, and depression. He also experienced sensory changes in his hands every now and then. He reported blurred vision and double vision that was both horizontal and vertical. He reported decreased hearing in the right ear, but denied decreased sense of taste or smell and seizures. He stated that bright lights increased his headaches. He reported neurobehavioral symptoms of irritability, restlessness, lack of motivation, aggression, lack of empathy, and moodiness. He denied any symptoms of autonomic dysfunction, endocrine dysfunction, or cranial nerve dysfunction. On physical examination in May 2010, the Veteran had 20/20 visual acuity with glasses, motor function was of normal power (5/5) throughout, muscle tone and reflexes were normal, sensory function was normal, gait, spasticity, and cerebellar signs were normal, there were no autonomic nervous systems problems, and cranial nerves were normal. A mini-mental state examination was 25/30, showing no cognitive impairment. A test of memory malingering was positive for malingering. The VA examiner noted that although the Veteran reported memory loss, the examiner was not able to document that objectively due to the presence of malingering. The VA examiner assessed mildly impaired judgment, but noted that social interaction was routinely appropriate. The Veteran was oriented to person, time, place, and situation. Motor activity appeared to be intentionally slowed, and there was no evidence of apraxia. Visual spatial orientation was normal. On the question of whether the Veteran had three or more symptoms that moderately interfered with work, activities of daily living, or relationships, the VA examiner noted that the Veteran reported multiple subjective symptoms interfering with his ability to function, including double vision, frequent headaches, and marked fatigue, but that there was no objective evidence to support them. In terms of neurobehavioral effects, mild irritability was noted, and the VA examiner concluded that the Veteran's neurobehavioral effects did not interfere with workplace or social interaction. The Veteran was able to communicate and comprehend spoken and written language. Consciousness was normal; there were times when the Veteran appeared to be sedated, but he immediately pointed those time out to the examiner. A number of psychological tests were administered; the VA examiner noted that the Veteran showed signs of psychiatric difficulties, not of traumatic brain injury, and that he also showed signs of exaggeration of complaints. The VA examiner was unable to make a diagnosis on Axis I of the DSM-IV diagnosis charge due to the degree of exaggeration. The May 2010 VA examiner concluded that there was no evidence to suggest service-connected TBI based on this evaluation. The Veteran's responses were atypical, showing signs of exaggeration. There was no evidence of clear localization to the cortex. Moreover, his report of the description of the injury did not match the medical records in the claims file. The Veteran was afforded another VA examination to evaluate the severity of his TBI in September 2011. He denied any history of seizures, autonomic dysfunction, numbness, paresthesias, or other sensory changes, ambulatory problems, bowel problems, bladder problems, speech/swallowing difficulty, endocrine dysfunction, or cranial nerve dysfunction. He reported continuous headaches that varied in intensity, dizziness at a minimum of four or five times per day, including when he was driving, and trouble with balance. He stated he recently fell while walking up the stairs and tripped walking into his home. He reported weakness in the right arm secondary to right shoulder pain. In terms of mobility, he stated that there were days when he needed assistance getting out of bed. He stated that loud noises woke him up, even when he took medication, and that when he forgot to take medication, he had difficulty falling asleep. He felt tired every day and felt fatigued constantly which made him irritable. He reported moderate memory impairment, and cognitive symptoms including decreased attention, difficulty concentrating, and difficulty with executive functions. In terms of neurobehavioral problems, he reported irritability and restlessness. He reported ringing in his ears that occurred daily. The Veteran reported hypersensitivity to light and sound, which worsened the severity of his headaches. He complained of blurred vision in his right eye, and although he recently received new glasses, he was convinced he needed testing again. He reported not being able to smell when he burned something. On physical examination in September 2011, reflex, sensory, and motor examinations were normal. There were no physical findings of autonomic nervous system impairment, muscle atrophy or loss of muscle tone, spasticity or rigidity, fasciculation, cranial nerve dysfunction, hearing problems, endocrine dysfunction, skin breakdown, or vision problems. The Veteran was slightly unsteady when walking. There was mild impairment of memory, attention, concentration, and executive functions resulting in mild functional impairment. Judgment was mildly impaired. Social interaction was occasionally inappropriate. The Veteran was fully oriented. Motor activity and visual spatial orientation were normal. Examples of subjective symptoms that moderately interfered with work, activities of daily living, or relationships included marked fatigability, blurred or double vision, and headaches requiring rest periods on most days. There were one or more neurobehavioral effects that occasionally interfered with workplace or social interaction but did not preclude them. The Veteran was able to communicate and comprehend by spoken and written language. Consciousness was normal. On neuropsychological testing, the Veteran scored perfectly on visuospatial/executive, naming, abstraction, and orientation. On memory testing, he recalled 3 out of 5 on the first trial and 4 out of 5 on the second trial. He scored 5 out of 6 on attention, and 1 out of 3 on language; the VA examiner noted he had difficulty in fluency and naming. He scored a 0 out of 5 on delayed recall, and was able to recall one word with cueing. The VA examiner assessed a TBI associated with memory loss, decreased concentration, inappropriate behavior, and poor social interactions. He took an increased amount of time to complete tasks. The VA examiner further opined that the sleep disorder symptoms were not related to the TBI. After reviewing the lay and medical evidence of record, the Board finds that the weight of the evidence is against the assignment of a disability rating in excess of 40 percent from October 23, 2008, forward. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). However, resolving reasonable doubt in the Veteran's favor, the assignment of separate ratings for tinnitus and headaches is warranted, as discussed below. First, the Board has evaluated the Veteran's cognitive, emotional/behavioral, and physical impairment resulting from the TBI using the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." The Board notes that emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately under 38 C.F.R. § 4.130 (Schedule of Ratings for Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder due to TBI, emotional/behavioral symptoms should be evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other residuals of TBI Not Otherwise Classified." In this case, the Veteran is currently diagnosed with a comorbid mental disability - PTSD, evaluated as 30 percent disabling. Although the VA examiners and clinicians did not state which emotional/behavioral symptoms were part of the comorbid PTSD versus which represented residuals of TBI, the Board has provided the Veteran with the benefit of the doubt and considered the Veteran's emotional/behavioral problems under the neurobehavioral effects facet of the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Memory impairment cannot be classified as more than mild, warranting an impairment level of 1. Although the Veteran reported poor short-term memory, difficulty concentrating, and difficulty with executive functioning at the May 2010 VA examination, he scored a 25 out of 30 on a mini-mental state examination, revealing no cognitive impairment. Moreover, the 2010 VA examiner was unable to confirm memory loss objectively due to the presence of malingering. The September 2011 VA examiner assessed only mild impairment of memory, attention, concentration, and executive functions. Thus, memory impairment due to TBI warrants an impairment level of 1. Next, the Veteran's judgment was noted to be mildly impaired by the May 2010 and September 2011 VA examiners. Thus, the assignment of an impairment level of 1 is appropriate for judgment. While the May 2010 VA examiner concluded that the Veteran's social interaction was routinely appropriate, the September 2011 VA examiner noted that social interaction was socially inappropriate, warranting an impairment level of 1. The Veteran was always fully oriented, so an impairment level of 0 is assigned for orientation. The May 2010 VA examiner noted that motor activity appeared to be intentionally slowed, and there was no evidence of apraxia. Moreover, motor activity was normal at the September 2011 VA examination. Therefore, an impairment level of 0 is also assigned for motor activity. Visual spatial orientation was normal at both the 2010 and 2011 VA examinations; therefore, an impairment level of 0 is assigned for that symptom. The May 2010 VA examiner noted that the Veteran reported three or more subjective symptoms that moderately interfered with work, daily activities, and relationships, including double vision, frequent headaches, and marked fatigue, but that there was no objective evidence of these symptoms. The September 2011 VA examiner also noted three or more subjective symptoms that moderately interfered with work, daily activities, or relationships, including marked fatigability, blurred or double vision, and headaches. Thus, an impairment level of 2 is appropriate for subjective symptoms. With regard to neurobehavioral effects, while the May 2010 VA examiner concluded that the Veteran's neurobehavioral effects did not interfere with workplace or social interaction, the September 2011 VA examiner noted one or more neurobehavioral effects that occasionally interfered with workplace or social interactions but did not preclude them. Resolving reasonable doubt in favor of the Veteran, the assignment of an impairment level of 1 is appropriate for neurobehavioral effects. The Veteran was consistently able to communicate and comprehend spoken and written language, so an impairment level of 0 is assigned for communication. Finally, the evidence does not demonstrate a persistently altered state of consciousness, minimally responsive state, or coma, so no score is assigned for consciousness. In sum, none of the facets listed in the table are evaluated as "total," and the weight of the evidence demonstrates that the highest level of impairment of any given facet is 2. Therefore, under 38 C.F.R. § 4.124a, the highest evaluation available for residuals of TBI is 40 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). Thus, for the reasons discussed above, the Board finds that the Veteran is not entitled to a disability evaluation in excess of 40 percent from October 23, 2008, forward, under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" because no facet was classified at an impairment level of "3" during any part of the rating period on appeal from October 23, 2008, forward. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. However, as mentioned above, the Board finds that separate ratings are warranted for the Veteran's reported symptoms of tinnitus and headaches resulting from his TBI. VA treatment records show that the Veteran has been diagnosed with headaches as a distinct diagnosis. Diagnostic Code 8045 provides that residuals with distinct diagnoses, such as headaches, are to be separately evaluated under the appropriate diagnostic code. Diagnostic Code 8100 provides for a 10 percent disability rating for migraine with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is provided for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent disability rating is provided for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As noted above, a December 2008 VA treatment note indicates the frequency of the Veteran's headaches had decreased. At the September 2011 VA examination, the Veteran reported daily headaches that varied in intensity. The Veteran has provided credible evidence that he has headaches which are not prostrating. Under Diagnostic Code 8100, that level of disability more nearly approximates a noncompensable rating. Thus, a separate noncompensable rating is warranted for headaches under Diagnostic Code 8100 from October 23, 2008, forward. 38 C.F.R. § 4.124a. Next, the Board finds that a separate 10 percent rating is warranted for tinnitus from October 23, 2008, forward. Tinnitus is evaluated under Diagnostic Code 6260, which provides a maximum 10 percent evaluation for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2 (2012). The Veteran's attorney contends that a separate rating is also warranted for memory loss. However, as noted above, the Veteran's memory loss is specifically provided for in the rating criteria for residuals of TBI, and is therefore encompassed in the currently assigned 40 percent evaluation for residuals of TBI. Since the assignment of a separate rating for memory loss would overlap with the current rating for residuals of TBI, a separate rating for memory loss is not permissible. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The Board notes that the Veteran reported pain due to his already service-connected disabilities, including DDD of the cervical spine, DDD of the thoracolumbar spine, degenerative joint disease of the knees, and impingement syndrome of the shoulders. There were no other physical symptoms that warrant a separate evaluation as a residual of TBI. In addition, the Veteran reported some hearing loss, particularly in the right ear. He already has service-connection for hearing loss in the right ear, and service connection for left ear hearing loss was previously denied by the RO in a March 2008 rating decision, as his hearing loss in that ear did not meet the criteria for classification as a disability under VA regulations. Further, the Veteran reported balance problems at the VA examinations, and the September 2011 VA examiner noted that he was slightly unsteady when walking. However, gait has been normal throughout the rating period on appeal, and no diagnosis or etiology has been proffered with regard to the Veteran's balance problems. Therefore, the Board finds that a separate rating for balance problems is not warranted. In reaching this determination, we note that he was not able to walk on his toes and there was some difficulty with tandem walking. However, as noted above, gait was normal and the Romberg sign was negative. Finally, the evidence does not demonstrate motor or sensory dysfunction, visual impairment, loss of sense of smell and taste, seizures, gait or coordination problems, speech or other communication difficulties, dysarthria, neurogenic bladder, neurogenic bowel, cranial nerve dysfunctions, autonomic nerve dysfunctions, or endocrine dysfunctions associated with the TBI. Based on the medical evidence of record, the Board can find no other physical disability resulting from the Veteran's TBI that requires a separate compensable rating under the appropriate diagnostic code. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is competent to report his observable symptoms. Layno, 6 Vet. App. at 469-70. To the extent that the Veteran argues or suggests that the clinical data supports an increased rating or that the rating criteria should not be employed, the Board finds that the VA examination and clinical reports, which considered the Veteran's reported symptoms, are more persuasive than the Veteran's assertions that he is entitled to a higher disability rating. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's thoracolumbar spine and TBI disabilities. 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 the claimant'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 the claimant's disability level and symptomatology, then the claimant'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 the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant'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 - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's thoracolumbar spine disability has manifested in arthritis, disc disease, and painful movement. The schedular criteria for rating the thoracolumbar spine disability (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the thoracolumbar spine to the rating schedule, the degree of disability of the thoracolumbar spine throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The Veteran's residuals of TBI manifested in symptoms including headaches, memory loss, and tinnitus. The schedular criteria for rating residuals of TBI (38 C.F.R. § 4.124a, Diagnostic Code 8045) specifically provide for ratings based on the presence of cognitive, emotional/behavioral, and physical symptoms such as those described by the Veteran, and even provide for more severe symptomatology. In this case, comparing the Veteran's disability level and symptomatology of residuals of TBI to the rating schedule, the degree of disability caused by the TBI throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the thoracolumbar spine and TBI disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Because the appeal as to the appropriate rating for the thoracolumbar spine disability arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a thoracolumbar disability, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). With regard to the service connection and increased rating for TBI claims, in a timely June 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. In addition, the letter described how VA determines disability ratings and effective dates. The November 2008 rating decision included the old criteria used prior to October 23, 2008 for rating residuals of TBI, while the August 2010 Statement of the Case (SOC) included the new rating criteria. An October 2010 letter informed the Veteran of the requirements needed to establish an increased evaluation for a TBI. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. The Board finds that the Veteran was not prejudiced by any untimeliness in notice, as he was provided with ample opportunities to submit additional evidence after proper notice was provided, including after the February 2011 and November 2011 Supplemental Statements of the Case (SSOC). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, VA opinions with regard to bladder, thoracolumbar spine, and TBI claims, and the Veteran's statements. The Veteran has been afforded adequate examinations on the issue of increased ratings for service-connected thoracolumbar spine and TBI disabilities. VA provided the Veteran with examinations in November 2007, May 2010, and September 2011. The Veteran's history was taken, and complete examinations with clinical measures were conducted, to include X-ray studies in the case of the thoracolumbar spine examinations. Conclusions reached and diagnoses given were consistent with the examination reports, including notation of whether there were additional losses of ranges of motion of the spine due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issues of increased ratings for service-connected thoracolumbar spine and TBI disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A VA opinion was obtained in September 2008 with regard to the question of whether the Veteran had a neurogenic bladder that is related to active service. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September 2008 VA opinion obtained in this case is adequate as to the question of whether the Veteran has a neurogenic bladder that is related to service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the neurogenic bladder claim has been met. 38 C.F.R. § 3.159(c)(4). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a neurogenic bladder is denied. An initial evaluation in excess of 10 percent for DDD of the thoracolumbar spine with degenerative arthritis is denied. An increased disability evaluation for residuals of a TBI, status post improvised explosive device (IED) blast concussion, evaluated as 10 percent disabling prior to October 23, 2008, and as 40 percent disabling from October 23, 2008, forward, is denied. A separate noncompensable disability evaluation for migraine headaches is granted for the rating period from October 23, 2008, forward, subject to the rules governing payment of monetary benefits. A separate 10 percent disability evaluation for tinnitus is granted for the rating period from October 23, 2008, forward, subject to the rules governing payment of monetary benefits. REMAND The Veteran has complained of radiating pain, at times there has been a positive straight leg test and there was abnormal sensory examination during the May 2010 examination. However, the etiology was not established. The Veteran contends that he has a current sleep disorder that is a separate and distinct disorder from his service-connected PTSD. A VA examination and opinion was obtained to address this question in September 2011. The VA examiner opined that the sleep disorder was a separate and distinct disorder but was related to the PTSD. The examiner explained that the symptoms of the sleep disorder, first noted in service in August 2007, began as part and parcel to a developing PTSD and continued to develop with regard to the substantiative PTSD. The Board finds that the 2011 VA examiner's opinion is unclear, and that a new examination and opinion are necessary with regard to the sleep disorder claim. The Board further finds that the issue of entitlement to an increased rating for PTSD is inextricably intertwined with the issue of entitlement to service connection for a sleep disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991). The fact that an issue is inextricably intertwined does not establish that the Board has jurisdiction of the issue, only that the Board cannot fairly proceed while there are outstanding matters that must be addressed by the RO in the first instance. Accordingly, the issues of entitlement to service connection for a sleep disorder and to an increased rating for PTSD are REMANDED for the following action: 1. Afford the Veteran a VA examination (preferably with an examiner other than the September 2011 VA examiner) to address the causation or etiology of any current sleep disorder, including whether there is a current sleep disorder that is separate and distinct from the service-connected PTSD. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. A sleep study should be conducted if deemed to be clinically indicated by the examiner. The claims file must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. a. The examiner should first identify any and all current sleep disorders, if any. If the Veteran does not meet the diagnostic criteria for a sleep disorder, the examiner should so state and explain why this is so. b. The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran has a sleep disorder that is separate and distinct from his PTSD? In other words, is any current sleep disorder a symptom of PTSD, or is it a separate disorder with a distinct etiology? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. c. If it is the examiner's opinion that the Veteran's sleep disorder is not a component of his service-connected PTSD, but is rather a distinct disorder, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's currently diagnosed sleep disorder(s) was/were incurred during or caused by active service? The examiner should comment on the notation of the Veteran's complaint that he was unable to sleep in August 2007, during active service. If the opinions and/or supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion is due to a need for further information (with such needed information identified) or because the limits of medical knowledge have been exhausted regarding the etiology of the Veteran's claimed sleep disorder. 2. The AOJ should schedule an examination for the purpose of determining if there is neurologic impairment associated with the service connected spine disability. 3. The AOJ should review the added evidence. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs