Citation Nr: 1640463 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 10-18 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and generalized anxiety disorder. 2. Entitlement to service connection for a lower back disability, to include degenerative disc disease (DDD). 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to an initial compensable rating prior to March 17, 2016; and for a rating in excess of 10 percent from March 17, 2016, for vertigo. 6. Entitlement to an extraschedular rating for vertigo. 7. Entitlement to an initial rating in excess of 10 percent for residuals of traumatic brain injury (TBI) 8. Entitlement to an initial rating in excess of 30 percent for headaches associated with residuals of TBI. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include based on the impact of collective disabilities. REPRESENTATION Appellant represented by: Paul Burkhalter, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The appellant was a member of the Texas Army National Guard from May 1984 to May 1990, during which time he had several periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters came to the Board of Veterans' Appeals (Board) from September 2007, September 2008, December 2012, and May 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The September 2007 rating decision, inter alia, denied the claim for service connection for a lower back disability. The September 2008 rating decision, inter alia, denied the claims for service connection for a bilateral knee disability, a psychiatric disorder, and a lower back disability. The December 2012 rating decision granted service connection for vertigo as noncompensable, effective from November 27, 2006. The May 2016 rating decision increased the disability for vertigo to 10 percent from March 17, 2016; and granted service connection for residuals of TBI and headaches associated with residuals of TBI. In June 2011, the Board remanded these issues for further development. In December 2014, the Board once again remanded the issues for a videoconference hearing, which took place in July 2016 before the undersigned. A transcript of the hearing has been associated with the claims. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In a May 2016 rating decision, the Veteran was granted entitlement to service connection for residuals of traumatic brain injury and headaches. The Board finds that this constitutes a grant of the full benefits sought with regard to these disabilities, and they are no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim). See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability). On appeal, the Board has broadened the Veteran's claim for PTSD in order to encompass any psychiatric disorder, as instructed in Clemons v Shinseki, 23 Vet. App. 1 (2009), which held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In addition, VA is free to bifurcate a claim and adjudicate it in separate pieces. Tyrues v. Shinseki, 23 Vet. App. 166, 186 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011); rev'd on other grounds, 132 S.Ct. 75 (2011). Further, "[b]ifurcation of a claim generally is within the Secretary's discretion." Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). In this case, the Board will bifurcate the issue of increased initial rating for vertigo, and will adjudicate the issue of whether a higher initial rating for vertigo may be awarded on a schedular basis. However, the Board will remand the separate issue of entitlement to an extraschedular rating for vertigo under 38 C.F.R. § 3.321(b). Further, the Veteran's attorney in his July 2016 VA Form 9 requested that the appeal of the claim for a higher initial rating for vertigo be certified immediately, along with the claims for higher initial ratings for headaches and TBI. However, those claims are in a different procedural posture from each other. The Veteran timely appealed the initial noncompensable rating assigned for vertigo, a statement of the case (SOC) was issued in April 2016, and the Veteran's Form 9 was timely filed within 60 days of this SOC. Although the appeal on this issue was not certified to the Board, certification is used for administrative purposes and does not confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2015). In contrast, no SOC has been issued as to the claims for higher initial ratings for headaches and TBI. Although there may be circumstances in which the absence of a SOC is not an absolute bar to the Board taking jurisdiction over a claim, see Archbold v. Brown, 9 Vet. App. 124 (1996), here the Form 9 was filed contemporaneous with the NOD with the initial ratings assigned for headaches and TBI, and thus before a SOC could have been issued as to these matters. Consequently, the Board finds that a remand for a SOC as to the claims for higher initial ratings for headaches and TBI is required. See 38 C.F.R. § 19.9(c) (2015), codifying Manlincon v. West, 12 Vet. App. 238 (1999) (in cases before the Board in which a claimant has timely filed a NOD with a determination of the AOJ on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC). As explained below, the issue of entitlement to a TDIU is before the Board as part and parcel of the appeal for higher initial ratings/increased ratings for the service-connected vertigo. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The issues of entitlement to a higher initial rating for residuals of TBI and headaches associated with residuals TBI, as well as entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in the Texas Army National Guard, including periods of ACDUTRA and INACDUTRA. 2. The Veteran's August 1986 and August 1988 parachute jumps occurred during a period of ACDUTRA. 3. The evidence is at least evenly balanced as to whether the Veteran's psychiatric disability was incurred during active military service. 4. The evidence is at least evenly balanced as to whether the Veteran's lower back disability was incurred during active military service. 5. The evidence is at least evenly balanced as to whether the Veteran's right knee disability was incurred during active military service. 6. The evidence is at least evenly balanced as to whether the Veteran's left knee disability was incurred during active military service. 7. The evidence is at least evenly balanced as to whether from November 27, 2006, the Veteran has experienced dizziness and occasional staggering associated with his vertigo that more closely approximates a disability rating of 30 percent. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a psychiatric disability have been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a lower back disability have been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a right knee disability have been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for a left knee disability have been met. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 5. With reasonable doubt resolved in favor of the Veteran, from November 27, 2006, the criteria for an initial 30 percent rating for vertigo have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code (DC) 6204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Given the favorable actions taken below concerning the claims for entitlement service connection for a psychiatric disorder, a lower back disability, and a right and left knee disability; as well as the claim for an increased rating for vertigo, the Board will not discuss further whether those duties have been accomplished. I. Service Connection Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-IV (where certification was on or before August 4, 2014; otherwise DSM 5); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). To have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a member of the National Guard must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. ACDUTRA is full-time duty for training purposes performed by the Reserves and members of the National Guard pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by the Reserves and members of the National Guard pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). 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. §§ 1131; 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes active duty, and "any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (2015). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or an injury incurred or aggravated during INACDUTRA, but presumptive periods do not generally apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases first manifested after separation) for periods of ACDUTRA or INACDUTRA is not appropriate in this case. As a preliminary matter, the Board finds that the Veteran participated in parachute jumps occurring during periods of ACDUTRA. The Board makes this finding based on the Veteran's and his unit members' statements describing their numerous parachute jumps and, significantly, the fact that the Veteran has been granted service connection for vertigo, residuals of TBI, and headaches associated with residuals of TBI based on the same incidents, reflecting that VA has conceded that the Veteran was on ACDUTRA at this time. Facts The Veteran contends that in August 1986, his unit made a parachute jump with high wind conditions. He states that he landed very hard, "busting [his] helmet liner" and that he lost consciousness while the wind "dragged [him] approximately 50 feet, severely wrenching [his] back." He explained that once he regained consciousness, he could hear the cries for help from some of the other men in his unit, and that despite the pain in his head and his limp, he continued the mission after the other men had been evacuated. Further, the Veteran contends that in August 1988, his unit made a jump from a C-130 with high wind conditions where he was injured when he landed hard on his hip and was dragged approximately 30 feet. He also described another jump where he landed in the trees and caused tree limbs to be sheared off during his crash landing. In addition, the Veteran explained that as part of an elite pathfinder group, he did not record any of his serious injuries because to do so could put him on profile, which would have affected his promotional potential and possibly cause him to be "dropped from the unit." He also stated that as team leader, he lead by example, which entailed taking care of his men and continuing with the mission even if he was injured. In support of his claims, the Veteran submitted numerous lay statements from men who served in his unit. In September 2007, Major T.K.M. explained that unit members carried mission loads consisting of a 55-pound backpack, an 18-pound utility belt, an 8-pound rifle, a 14-pound uniform and helmet, and a 66-pound parachute. He stated that paratroopers habitually wore the full kit and parachute for over three hours, executed parachute operations, and then conducted foot operations usually at night over difficult terrain. In October 2007, First Sergeant D.S. stated that the Veteran suffered numerous injuries as a paratrooper, including a strike to the head, and injuries to his lower back in 1986 after he was dragged several feet over rough terrain due to high winds. He explained that many jumps required them to carry equipment in excess of 100 pounds. In October 2007, ISG R.H. Jr. described one jump in August 1986 during which the Veteran became unconscious after a hard landing and being dragged by high winds. Another incident involved a jump out of a C-130, after which he saw the Veteran limping. Similarly, in November 2007, Master Sergeant R.C. recalled several occasions when the Veteran told him that he had injured himself while making parachute jumps. He stated that despite injuries, the Veteran would complete the mission and that when he saw the medic, it was only for a verbal report of his injuries. He remembered two jumps in particular where several members of their unit were injured, but that after each incident the Veteran would return to duty to help the unit retain its expected level of combat readiness. In October 2007, Sergeant J.H., a team medic for the unit, stated that he had treated several unit members for injuries to the head, elbows, back, knees, and ankles, but that medical records were not retained. He recalled giving the Veteran painkillers on several occasions. He described two incidents, the first of which involved a jump from a C-130 in August 1988 when the Veteran landed extremely hard and received treatment for lower back and bilateral knee pain. The second incident took place in February 1989 when the Veteran missed the drop zone, landed in some trees, and received treatment for multiple scratches on his back, face, and legs. While the Veteran did not sustain serious injuries, his uniform was ripped and he was bleeding, and he had stated that both his legs felt like they were broken. The Veteran also complained of low back pain but refused medivac after he was bandaged up. In January 2013, E.C.N., the unit's former senior medic, stated that in June 1986, he treated the Veteran for low back pain, which he had jarred when repelling with full combat gear. He explained that the Veteran had attempted to finish the mission but that he could not continue to move through the heavily wooded area and had to be medevac'd out of the field. E.C.N. also noted another incident in August 1986 when he treated the Veteran for a head injury after a jump. He explained that the Veteran was limping and had reported a period of unconsciousness. There were no bone fractures, but the Veteran continued to experience low back and head pain, and refused to board a medivac helicopter. Lastly, in August 1987, the Veteran sought treatment for low back pain, and E.C.N. advised him to not perform the jump scheduled for the next day. The Veteran's STRs are entirely negative for pertinent complaints or abnormalities, including any injuries or diseases. Indeed, the Veteran underwent annual physical examinations in May 1984, November 1984, October 1985, October 1986, and January 1988, and the results were consistently normal in all pertinent respects. Specifically, on each occasion, the Veteran's spine and musculoskeletal system were normal. Psychiatric and neurologic evaluation was also normal on each occasion, as was laboratory testing. In connection with each of these physical examinations, the Veteran completed Reports of Medical History on which he consistently denied having or ever having had a head injury, recurrent back pain, a "trick" or locked knee, depression or excessive worry, periods of unconsciousness, dizziness or fainting spells, or nervous trouble of any sort. He described himself as being in good health and indicated that he was employed as a welder. Psychiatric Disorder The Veteran contends that he has a current psychiatric disorder, to include PTSD, MDD, and anxiety, that was incurred in or is the result of military service. In June 2008, the Veteran underwent a psychological assessment in connection with his complaints of anxiety. He reported that at the age of 42 (approximately in 2003), he had injured his shoulder, back, and, leg; indicated that he had undergone shoulder and knee surgery; and reported he experienced continued pain. The Veteran indicated that he had worked as a welder, construction foreman, and realtor, but had recently quit due to increasing anxiety. The impression was generalized anxiety disorder. In a July 2008 letter, the Veteran's counselor indicated that he had been treating the Veteran since March 2008 for panic disorder without agoraphobia. An August 2011 VA examination report reflected a diagnosis of generalized anxiety disorder and mood disorder due to general medical condition. The Veteran reported symptoms of depressed mood, loss of interest in previously enjoyed activities, inability to relax, and suicidal ideation. He stated that many of his psychiatric symptoms began as his physical disabilities, which were incurred in service, worsened. The VA examiner noted that it was not possible to distinguish which symptoms and functional impairment were related to the Veteran's generalized anxiety disorder versus his mood disorder due to general medical condition because the diagnoses shared many symptoms, including increased difficulty in making decisions, poor concentration, and increased irritability. The examiner was not asked to provide a nexus opinion. In December 2012, R.B., a licensed professional counselor (LPC), administered the MMPI-2 and the MCMI-III tests, which conveyed the impression of an individual who was markedly depressed and extremely anxious. The results also suggested symptoms of PTSD. R.B. found that the August 2011 VA examiner's diagnosis of "generalized anxiety disorder for which he was first diagnosed in 2008, as well as mood disorder due to general medical condition" were consistent with the results of the tests. VA treatment records in April 2013 refer to the 1986 parachute maneuver during which the Veteran was blown off course and hit the back of his head, cracking the inside of his helmet. The psychiatrist noted that after the incident, the Veteran reported worsening headaches, depression, confusion, and agitation. She assessed the Veteran with mood disorder due to a general medical condition, TBI, and alcohol abuse. In May 2013, a VA psychologist noted that the Veteran was experiencing symptoms of PTSD secondary to his military service and was having "difficulties with anxiety and managing his chronic pain and its associated limitations." In October 2013, the VA psychologist noted that the Veteran had nightmares about his parachute jump when he had flipped backwards and hit his head, and that he was experiencing symptoms of PTSD related to his military service. In December 2014, Dr. M.M., the Veteran's VA psychologist, stated that the Veteran had completed a chronic pain group addressing his severe and debilitating pain, and that he continued to meet the criteria for PTSD and MDD stemming from his military experiences, "especially parachuting injuries." In June 2015, Dr. M.M. completed an interrogatory noting that the Veteran's depression and anxiety disorders were "caused by or [were] the result of his experiences during military training and/or the head injury he suffered during the time of his military service," and that the conditions "existed and persisted" at least since November 27, 2006. She explained that there was no history of depression or anxiety prior to the Veteran's military service, and that "session contacts mainly [focused] on how traumatic experiences (deployments) [had] impacted current functioning." She also noted that the Veteran's chronic pain, which also began in service, worsened his mood symptoms. In October 2015, Dr. M.M. stated that while the Veteran had anxiety, which manifested as panic disorder and generalized anxiety, his "core issue" was chronic and severe PTSD symptoms related to his military service. She also noted that the Veteran experienced chronic and debilitating pain, which exacerbated his anxiety and led to severe recurrent depressive episodes. VA treatment records in November 2015 reflected diagnoses for PTSD, MDD, and agoraphobia. Social Security Administration (SSA) records revealed that in August 1986, the Veteran struck his head on rocks after a parachute jump. The Veteran reported that he began to experience debilitating depression and anxiety about 15 years ago in approximately 2000 as a result of his chronic pain and worsening physical limitations. The psychologist diagnosed him with major neurocognitive disorder due to multiple etiologies, recurrent and severe MDD without psychotic features, panic disorder, and generalized anxiety disorder. As an initial matter, the Board notes that the Veteran suffered a head injury during service, specifically during his August 1986 parachute jump, which occurred during a period of ACDUTRA. Further, the Veteran has been diagnosed with a psychiatric disorder, to include PTSD, MDD, generalized anxiety disorder, and agoraphobia. As such, the only remaining issue is whether the Veteran's current psychiatric disorders are etiologically related to his period of ACDUTRA, and whether his PTSD is related to an in-service stressor. 38 C.F.R. § 3.304(f). Here, Dr. M.M. noted that the Veteran was experiencing symptoms of PTSD secondary to his military service and was having "difficulties with anxiety and managing his chronic pain and its associated limitations." Further, she noted that the Veteran's PTSD and MDD stemmed from his military experiences, "especially parachuting injuries." Of particular note, in June 2015 Dr. M.M. found that the Veteran's depression and anxiety disorders were "caused by or [were] the result of his experiences during military training and/or the head injury he suffered during the time of his military service," because there was no history of depression or anxiety prior to the Veteran's military service, and that "session contacts mainly [focused] on how traumatic experiences (deployments)" impacted the Veteran's current functioning. In addition, the May 2013 and October 2013 VA psychologist found that the Veteran was experiencing symptoms of PTSD related to his military service. Further, the Board notes that while the August 2011 VA examiner diagnosed the Veteran with generalized anxiety disorder, he did not provide a nexus opinion addressing whether the psychiatric disorder was etiologically related to the Veteran's military service, particularly his parachute jumps. The evidence is thus at least evenly balanced as to whether the Veteran's psychiatric disorder, to include PTSD, MDD, generalized anxiety disorder, and agoraphobia, is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Lower Back Disability The Veteran contends that he has a current lower back disability that was incurred in or is the result of military service. In April 2010, the Veteran submitted a note from A.H., MD, MPH, a private physician who described himself as being a specialist in occupational medicine with "practice experience in the determination of causality." Dr. A.H. noted that the Veteran had reported a history of having been hurt multiple times in the military, specifically injuries to his low back and knees. Dr. A.H. indicated that after examining the appellant and reviewing the available record, including the Veteran's STRs, he felt that the following medical diagnoses were probable: Possible Derangement, knee, cartilage/Meniscus tear R/O, Pending, Possible Derangement, Cartilage (Articular) NEC R/O, Pending, Possible Derangement Joint, Internal, Specified Site NEC R/O, Pending, Possible pain, Lumbago (Lower Back) Paratrooper Related By pain, {Knee(s) Joint(s)}/Lower Leg(s) Paratrooper Related By Dysfunction, Lumbar/Lumbosacral Paratrooper Related By Dysfunction, Lower Extremity Paratrooper Related By Anxiety, Generalized Paratrooper Related By Arthritis, Unspecified Site(s) Paratrooper Related By In a narrative summary, Dr. A.H. further indicated that it was his opinion that the Veteran's "current lower back condition [was] medically more likely than not directly related to paratrooper activity during the [Veteran's] active duty paratrooper military period" because his injuries were similar in type, style, severity, and chronicity to other compression injuries relating to parachute/jumping activity injuries. A July 2011 VA examination report reflected that during a parachute jump, the Veteran missed his drop zone, landed on a tank trail with his feet, and his parachute was pulled by the wind, causing him to bounce on his back and rear multiple times and break his helmet. The Veteran reported that his back had been bad ever since, and that it had worsened such that he could not bend to do yard work, sit too long, or walk. He had had joint injections bilaterally twice and used to take ibuprofen regularly. He had physical therapy but he quit doing the exercises because he had difficulty getting on the floor to do the exercises for his back. The VA examiner, an advanced registered nurse practitioner (ARNP), diagnosed him with mild diffuse bony degenerative changes in the lumbar spine; DDD lumbar spine. She stated that she could not resolve the etiology issue without speculation because while the Veteran reported that he injured his lower back during the August 1986 parachute jump, the 1988 physical examination was normal and there were no STRs concerning lower back problems. She noted that the Veteran first reported lower back problems 20 years after service, and that while she had reviewed Dr. A.H.'s opinion that the Veteran' lower back disability was related to his military service, "it [was] impossible to determine if [the lower back disability was] related to parachute jumping or merely a consequence of aging, lifestyle, and genetics." As such, she opined that "it may be less than a 50 [percent] probability that [the lower back disability was] NOT related to his military activities, however this [was] mere speculation." In September 2011, the Veteran submitted an independent medical expert nexus opinion by Dr. C.N.B., M.D., M.B.A., who reviewed the Veteran's claims file and conducted an in-person clinical interview. Dr. C.N.B. noted that the Veteran suffered injuries to his lower back during in-service parachute jumps, and was evaluated by a medic on at least one occasion. He also noted that the Veteran was currently diagnosed with DDD of the lumbar spine, and that a 2008 MRI showed retrolisthesis of L2 on L3, L3 on L4, and L4 on L5 consistent with multilevel pars defects. He explained that pars defect is a classic type of injury due to axial loading, and that the Veteran had a significant amount of axial loading due to his 65-pound combat gear weight combined with his 65 repetitive parachute jumps. Dr. C.N.B. opined that it was at least as likely as not that the Veteran's current lower back disability was due to his experiences/trauma in-service. Citing several medical articles, he remarked that the Veteran was sound when he entered service, that he likely had low back injuries while in service, that he saw a medic for his low back problems, that his lay statements showed chronicity of low back problems, that it was a well-known medical principle that parachute types of injuries both precipitated and accelerated the onset of the degenerative process of the spine, that repetitive loads early in life were known to cause advanced for age DDD, that his record did not support another more plausible etiology for his current lower back disability, that the time lag interval between his service injury and his development of signs and symptoms was consistent with known medical principles and the natural progression of the disease, and that the opinion was consistent with Dr. A.H.'s opinion. Dr. C.N.B. acknowledged the July 2011 VA examiner's opinion, but discounted it. He stated that the ARNP was not able to make or revise a doctor-diagnosed illnesses because she was not "well-trained in relative terms" and thus did not know "what to look for as far as the nexus between the Veteran's service injuries and his current disabilities," she did not consider all the facts or "every possible sound medical etiology/principle to link the Veteran's service time signs and symptoms to his current diseases," her opinion was cursory as she stated that it was "impossible to tell the etiology of his back disease" and thus the "benefit of the doubt should go to the Veteran as she [listed] many equally likely causes," she did not discuss how the Veteran could have developed multilevel DDD in his lumbar spine, and she did not discuss medical literature or the Veteran's lay statements. In January 2013, the Veteran submitted a letter from Dr. D.G. stating that he had treated the Veteran for low back pain from 1992 to 1996, but that due to the passage of time medical records were no longer available and were likely destroyed. He recalled discussing with the Veteran his paratrooper service and "attributing his low back injuries to parachute jumping as he reported no other injury and the pain he was experiencing was consistent with this kind of activity." He noted that the evaluations from Dr. A.H. and Dr. C.N.B. were also supportive "in attributing this activity as the most likely cause of his current back condition." As an initial matter, based on the Veteran's and E.C.N.'s lay statements, the Board finds that the Veteran suffered a lower back injury during service, specifically during his August 1986 and August 1988 parachute jumps, which occurred during a period of ACDUTRA. Further, the Veteran has been diagnosed with DDD of the lumbar spine. As such, the only remaining issue is whether the Veteran's current lower back disability is etiologically related to his period of ACDUTRA. Here, Dr. A.H. opined that the Veteran's lower back disability was more likely than not related to his paratrooper activity because his injuries were similar in type, style, severity, and chronicity to other compression injuries relating to parachute/jumping activity injuries. Likewise, Dr. C.N.B. opined that it was at least as likely as not that the Veteran's current lower back disability was due to his in-service injury because his lay statements documented chronicity of the condition, there was no other plausible etiology based on the in-service and post-service records, and the medical literature supported his findings. Further, Dr. D.G. also opined that Veteran's paratrooper service attributed to his low back injuries as the Veteran did not report other injury and the pain he was experiencing was consistent with this kind of activity. Particularly, Dr. D.G. noted that this opinion was consistent with Dr. A.H's and Dr. C.N.B.'s conclusions. The Board notes that while the July 2011 VA examiner stated that it was impossible to state whether the Veteran's low back disability was related to his paratrooper service without resorting to speculation, Dr. C.N.B. discounted her opinion because, as an ARNP, the VA examiner was not "well-trained in relative terms" and thus did not know "what to look for as far as nexus," did not consider all the facts and possible sound medical etiology, did not address the Veteran's lay statements, did not discuss medical literature, and did not remark on how the Veteran could have developed multilevel DDD in his lumbar spine. As such, the Board finds that the July 2011 VA examiner's opinion is less probative than the opinions of Drs. A.H., C.N.B., and D.G. The evidence is thus at least evenly balanced as to whether the Veteran's lower back disability is related to active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Bilateral Knee Disability The Veteran contends that he has a bilateral knee disability that was incurred in or is the result of military service. A July 2007 private treatment record reflects a diagnosis of right medial meniscus tear. A July 2011 VA examination report reflected that the Veteran injured his right knee during a parachute jump. He also stated that after another jump, he injured both knees when he landed on them and felt them hyper-extend. He was treated with pain medication and an ace wrap in both instances. The Veteran reported that the knee improved, but that as time passed, it became stiff. He stated that he had steroid injections in the right knee and had two surgeries for a meniscus tear three and seven years ago. The VA examiner, an ARNP, diagnosed him with right knee meniscus tear, status post arthroscopic surgical repair; and left knee strain. She stated that she could not resolve the etiology issue without speculation because while the Veteran reported that he injured his knee during the August 1986 parachute jump, the 1988 physical examination was normal and there were no STRs concerning knee problems. She noted that the Veteran first reported knee problems 20 years after service, and that "it [was] impossible to determine if [the knee disability was] related to parachute jumping or merely a consequence of aging, lifestyle, and genetics." As such, she opined that "it may be less than a 50 [percent] probability that [the bilateral knee disability was] NOT related to his military activities, however this [was] mere speculation." In September 2011, the Veteran submitted an independent medical expert nexus opinion by Dr. C.N.B., M.D., M.B.A., who reviewed the Veteran's claims file and conducted an in-person clinical interview. Dr. C.N.B. noted that the Veteran had had 65 parachute jumps and developed knee pain while in service. He remarked that the Veteran had chronic knee pain with clicking, locking, and grinding bilaterally, and noted the Veteran's two right knee surgeries for a torn meniscus. He opined that both of the Veteran's "knee degenerative joint problems (clicking grinding and locking) [were due] to his service time parachute jumps as the [medical literature] support[ed] this and his records [did] not contain another more likely cause." As an initial matter, based on the Veteran's and E.C.N.'s lay statements, the Board finds that the Veteran suffered bilateral knee injuries during service, specifically during his August 1986 parachute jump, which occurred during a period of ACDUTRA. Further, the Veteran has been diagnosed with a right knee meniscus tear, status post arthroscopic surgical repair; and left knee strain. As such, the only remaining issue is whether the Veteran's current bilateral knee disability is etiologically related to his period of ACDUTRA. Here, Dr. C.N.B. opined that the Veteran's bilateral knee disability was due to his military service, specifically his parachute jumps, because the medical literature supported this conclusion and the Veteran's records did not contain a more likely cause for his disability. The Board notes that while the July 2011 VA examiner stated that it was impossible to state whether the Veteran's bilateral knee disability was related to his paratrooper service without resorting to speculation, she did not discuss the Veteran's lay statements addressing continuity of symptomatology or provide a rationale as to why his current disability could be due to lifestyle or genetics, as opposed to his in-service parachute jumps. As such, the Board finds the VA examiner's opinion is less probative than Dr. C.N.B.'s opinion, which discussed the Veteran's lay statements and medical literature. The evidence is thus at least evenly balanced as to whether the Veteran's bilateral knee disability is related to active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Initial Higher Rating for Vertigo Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. In its December 2012 rating decision, the RO assigned a noncompensable initial rating for the Veteran's vertigo, effective November 27, 2006, in accordance with the criteria set forth in the General Rating Formula for Ears, 38 C.F.R. § 4.87, DC 6204. In its May 2016 rating decision, the RO increased the disability rating to 10 percent, effective March 17, 2016. Under Diagnostic Code 6204, peripheral vestibular disorders are assigned a rating of 30 percent where there is dizziness and occasional staggering. A 10 percent rating is assigned with occasional dizziness. A Note explains that objective findings supporting a diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. See 38 C.F.R. § 4.87. Hearing impairment or suppuration shall be separately rated and combined. See.id. The term "staggering" is not defined in the rating schedule, but is generally defined as standing or proceeding unsteadily. See Webster's New College Dictionary, 3rd ed., at 1099. Private treatment records in November 2000 revealed that the Veteran experienced vertigo symptoms with the sensation that the room was moving a little bit and intermittent dizziness when he stood. The Veteran reported that the symptoms had been intermittent for a month. Records in October 2004 reflected that the Veteran was experiencing episodes of dizziness for a split second with no residuals. The Veteran denied any problems with coordination, smell, taste, hearing, speech, swallowing, memory, or thinking. In April 2008, the Veteran reported dizzy spells. VA treatment records in Mach 2013 revealed a loss of balance because of dizziness or passing out, May 2013 records reflected that the Veteran felt dizzy and listed a little, and October 213 records showed continuous dizziness. Records in February 2014 showed that the Veteran experienced vertigo and would intermittently have the sensation of falling to the left for up to five seconds at a time, sometimes prompted by head movement left to right, but other times the sensation came on while sitting up still. A March 2016 VA examination report reflected that the Veteran had vertigo on and off, for about 30 seconds to a few minutes. He usually felt like the room was spinning. The Veteran reported that if he was walking, he might stumble to his left side, and that he had had three car accidents because the vertigo interfered with his ability to judge the distance between his car and the car in front of him. The examiner opined that the vertigo would impact the Veteran's employment because during bouts of vertigo, he had trouble standing or walking without difficulty, and had fallen in the past. Further, the examiner noted that during flare-ups, the Veteran would have difficulty performing activity of employment that required long periods of standing or walking. Upon review of the evidence, the Board finds that an initial rating of 30 percent is warranted for the entirety of the appeal period, effective November 27, 2006. In this case, the evidence shows that as early as November 2000, the Veteran experienced the sensation of the room moving, as well as intermittent dizziness when he stood. Additional medical records reflected that the Veteran continued to have dizzy spells, which included a loss of balance in March 2013 and the sensation of falling to left in February 2014. Further, the March 2016 VA examiner noted that the Veteran might stumble to his left side when he was walking and that he had had three car accidents due to his vertigo. As such, an initial disability rating of 30 percent for vertigo for the entirety of the appeal is warranted. The Board notes this is the maximum rating under t The Board notes that this is the maximum rating permitted under the General Rating Formula for Ears. 38 C.F.R. § 4.87, DC 6204. ORDER Entitlement to service connection for PTSD with MDD and generalized anxiety disorder is granted. Entitlement to service connection for a lower back disability, to include DDD, is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to an initial rating of 30 percent for vertigo from November 27, 2006, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND After review of the evidence of record, the Board finds that a remand is necessary for further development of the remaining claims. In connection with the claims for entitlement to an initial rating in excess of 10 percent for residuals of TBI, and entitlement to an initial rating in excess of 30 percent for headaches associated with residuals of TBI, the Board notes that the AOJ denied the claims in May 2016. The Veteran submitted a timely notice of disagreement (NOD) in July 2016. These matters must thus be returned to the AOJ for appropriate consideration and issuance of a statement of the case (SOC) regarding the claims. 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). Furthermore, entitlement to a TDIU may be an element of an appeal for a higher initial rating and a claim for an increased rating. Rice, 22 Vet. App. at 447. Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In the present case, the March 2016 VA examiner stated that the Veteran's vertigo would impact his employment because during flare-ups, the Veteran would have difficulty performing activity of employment that required long periods of standing or walking. As such, TDIU is properly before the Board under Roberson and Rice. Nevertheless, as stated above, the Board has granted service connection for the Veteran's psychiatric disorder, lower back disability, and bilateral knee disability; and increased the Veteran's initial disability rating for vertigo to 30 percent, effective November 27, 2006. While the Board recognizes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, the Board finds that a medical opinion addressing the impact of the Veteran's collective disabilities on his ability to maintain gainful employment would be beneficial. See 38 C.F.R. § 4.16 (a) (2015); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). With regard to the Veteran's claim for a higher initial rating for vertigo, consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's vertigo are possibly not fully contemplated by the applicable criteria. The maximum rating criteria under 38 C.F.R. § 4.87 DC 6204 provides a rating of 30 percent for dizziness with occasional staggering. However, the evidence shows that in addition to staggering, the Veteran has been involved in three car accidents because he could not judge the distance between his car and the car in front of him due to his vertigo. Further, the March 2016 VA examiner stated that during flare-ups, the Veteran would have difficulty performing activities of employment that required long periods of standing or walking. Therefore, the rating criteria are not adequate and a remand for referral to the Director of the Compensation Service for consideration of extraschedular ratings for vertigo is warranted. Nevertheless, the Board notes that in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." The Federal Circuit in Johnson indicated that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function. Id. It accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. Id. As such, if the Veteran has TDIU, he is deemed to have total unemployability and there is no "gap" to fill by § 3.321(b). Therefore, the Board notes that should the AOJ grant TDIU, there would be no need to refer the Veteran's claim for increased initial rating for vertigo for extraschedular consideration. Accordingly, the case is REMANDED for the following actions: 1. Obtain a VA social and industrial survey to estimate the functional impairment caused by the Veteran's service-connected disabilities. The entire claims file, including a copy of this remand, must be available to the examiner, and the examiner should confirm that such records were reviewed. Specifically, the examiner should review and consider all relevant VA treatment records, VA examination reports and opinions, SSA records, and the Veteran's lay statements. 2. If the AOJ denies entitlement to a TDIU, refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted for the Veteran's initial rating disability for vertigo. However, as explained above, if the AOJ grants entitlement to a TDIU, do not refer the case to determine whether an extraschedular rating is warranted. See Johnson, supra. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the remaining claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time for response before the claims file is returned to the Board. 4. Take appropriate action pursuant to 38 C.F.R. § 19.26 in response to the July 2016 NOD concerning the claims for higher initial ratings for headaches and TBI, including issuance of an SOC pertaining to these claims (only if a timely substantive appeal is filed should these issues be returned to the Board). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs