Citation Nr: 1647521	
Decision Date: 12/21/16    Archive Date: 12/30/16

DOCKET NO.  14-08 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type II. 

2.  Entitlement to service connection for any heart disorder.  

3.  Entitlement to service connection for blood in the stool. 

4.  Entitlement to service connection for a respiratory disorder.  

5.  Entitlement to an effective date prior to February 8, 1995, for the grant of service connection for traumatic brain injury (TBI).  

6.  Entitlement to an effective date prior to August 30, 2012, for the grant of service connection for tinnitus.  

7.  Entitlement to an effective date prior to October 11, 2012, for the grant of service connection for bilateral hearing loss.  

8.  Entitlement to an effective date prior to April 11, 2013, for the grant of service connection for erectile dysfunction.  

9.  Entitlement to an initial noncompensable rating prior to January 8, 2015, and higher than 20 percent thereafter, for bilateral hearing loss.  

10.  Entitlement to an initial disability rating higher than 10 percent for tinnitus.  

11.  Entitlement to an initial compensable disability rating for erectile dysfunction.  

12.  Entitlement to an initial disability rating higher than 10 percent prior to August 30, 2012, and higher than 40 percent thereafter, for TBI; including whether a separate rating for motor and sensory dysfunction and coordination and balance problems is warranted.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran served on active duty from August 1977 to August 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January 2013, March 2014 and August 2015 by a Department of Veterans Affairs (VA) Regional Office (RO).  

The January 2013 rating decision granted service connection for TBI (previously also claimed as headaches and head injury) with a rating of 10 percent effective February 8, 1995; and a rating of 40 percent from August 30, 2012.  

The March 2014 rating decision denied service connection for respiratory condition, bilateral hearing loss, diabetes mellitus type II, erectile dysfunction, a heart condition, tinnitus, and bloody stools.  

In a rating decision dated in August 2015, the RO granted service connection for bilateral hearing loss with a noncompensable (zero percent) rating effective October 11, 2012, increased to 20 percent from January 8, 2015; service connection for tinnitus with a rating of 10 percent effective August 30, 2012; and service connection for erectile dysfunction with a noncompensable rating effective April 11, 2013.  

The Veteran had a Board hearing in June 2016.

Waiver of RO consideration of the additional evidence received subsequent to the July 2015 supplemental statement of the case and the August 2015 statement of the case is presumed given the date of the Veteran's substantive appeal.  See 38 U.S.C.A. § 7105(e).

The decision below addresses the issues of service connection for diabetes mellitus, a heart condition and blood in stools; an earlier effective date for the grant of service connection for TBI, hearing loss, tinnitus, and erectile dysfunction; and the initially assigned ratings for service-connected hearing loss, tinnitus, erectile dysfunction, and TBI headache residuals.  The issues of service connection for a respiratory disorder, and whether a separate rating is warranted for motor and sensory dysfunction and coordination and balance problems, are addressed in the remand section following the decision and are REMANDED to the agency of original jurisdiction (AOJ).  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  The Veteran served after the Vietnam War Era and he was not exposed to herbicides or other chemicals during his 1978 tour of duty in Korea or at any other time while in service.

2.  The Veteran did not have diabetes mellitus or any heart disorder during service or in the year after service; and his current diabetes mellitus and right bundle branch block disorder first manifested decades after service and are not related to service.  .

3.  The Veteran did not have bloody stools during service; and his recent bloody stools condition first manifested decades after service and is not related to service.  

4.  There was no prior unadjudicated/pending claim of service connection for TBI before February 8, 1995.

5.   Entitlement arose for tinnitus and hearing loss on August 30, 2012; there was no prior claim for these disabilities.

6.  There was a prior unadjudicated claim of service connection for erectile dysfunction before April 11, 2013 (since August 1994).

7.  The Veteran has been service connected for PTSD since February 8, 1995, and in a July 2015 rating decision, the RO granted service connection for erectile dysfunction secondary to PTSD.

8.  Prior to January 8, 2015, the Veteran's bilateral hearing loss was manifested by no worse than a noncompensable level of impairment; and level V severity in each ear thereafter.

9.  The Veteran's tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260.

10.  Throughout the course of the appeal, deformity of penis has not been shown, but there has been loss of use of a creative organ.

11.  Prior to October 23, 2008, the Veteran's TBI was productive of various residuals, including headaches with associated blurred vision and photosensitivity, but not multi-infarct dementia.

12.  As of October 23, 2008, the Veteran's greatest impairment from his TBI is his residual headaches with associated blurred vision and photosensitivity "subjective symptoms"; which has an assigned highest facet level score of "2" in the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, without multi-infarct dementia.

13.  The Veteran did not have migraine headaches with characteristic prostrating attacks occurring on an average of once per month prior to October 23, 2008; and he has not had headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability since October 23, 2008.


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus are not met.  38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).  

2.  The criteria for service connection for a heart disorder are not met.  38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).  

3.  The criteria for service connection for blood in stools are not met.  38 U.S.C.A. §§ 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).  

4.  The criteria for an effective date prior to February 8, 1995, for the grant of service connection for TBI are not met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

5.  The criteria for an effective date prior to August 30, 2012, for the grant of service connection for tinnitus are not met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

6.  The criteria for an effective date of August 30, 2012, but no earlier, for the grant of service connection for bilateral hearing loss are met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

7.  The criteria for an effective date of February 8, 1995, but not before, for the grant of service connection for erectile dysfunction secondary to PTSD are met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

8.  The criteria for an initial compensable disability rating of for bilateral hearing loss prior to January 8, 2015, and higher than 20 percent thereafter, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2016).

9.  The criteria for an initial rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2016); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

10.  The criteria for special monthly compensation (SMC) based on loss of use of creative organ have been met since February 8, 1995.  38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2016).

11.  The criteria for a separate compensable disability rating for service-connected erectile dysfunction have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115b, Diagnostic Code 7522 (2016).

12.  The criteria for an initial rating in excess of 10 percent for TBI with post-traumatic headaches and associated blurred vision and photosensitivity prior to October 23, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8045 (2008).

13.  The criteria for an initial rating of 40 percent, but no higher, for TBI with post-traumatic headaches and associated blurred vision and photosensitivity have been met effective from October 23, 2008.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8045 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

I.  Service Connection Claims 

Background and General Legal Criteria

The Veteran seeks service connection for diabetes mellitus, a heart disorder and bloody stools; all of which he says is due to Agent Orange exposure during service.  He asserts that he was exposed to Agent Orange/herbicides/toxic chemicals in 1978 during his tour of duty at Camp Carroll in South Korea; and elaborates that the exposure occurred while hauling/transporting drums containing Agent Orange to be buried at Camp Carroll in Korea.  See August 2014 and May 2016 statements from Veteran; Board Hearing Transcript, pp. 4, 8.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Service connection may also be granted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), such as diabetes mellitus, arteriosclerosis, endocarditis (valvular heart disease), and myocarditis, if manifested to a compensable degree within 1 year from the date of separation from service.  See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Additionally, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iv).  Additionally, certain enumerated diseases, such as ischemic heart disease and diabetes mellitus type II, shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).  

Herbicide and/or other Chemical Exposure

For these three claims, the Board will initially address the theory of service connection potentially due to in-service exposure to herbicides such as Agent Orange.  

First, the Veteran did not serve in Korea during the time period prescribed (April 1968 to August 1971) in 38 C.F.R. § 3.307(a)(6)(iv).  Instead, he served several years after this time period; thus, exposure to herbicides may not be presumed.  

Next, the Veteran nevertheless contends that a precedent has been set for a finding of in-service herbicides/Agent Orange exposure based on his service at Camp Carroll in Korea.  During his June 2016 Board hearing, he testified that he had located individual(s) on the worldwide web that told him that he was exposed to Agent Orange at Camp Carroll.  However, there is no corroborative evidence of this in the claims file.  Moreover, requests to the service department or other research agency such as the Joint Service Records Research Center (JSRRC) found that there was not sufficient evidence or documentation that the Veteran was exposed to Agent Orange/herbicides during his tour of duty at Camp Carroll in 1978, including while transporting barrels for burial or in any other capacity.  See March 2013, March 2014, and July 2015 responses.  In particular, in July 2015, JSRRC specifically stated that it had reviewed the 1978 Eighth US Army Command Chronology of the higher headquarters of the 2nd Engineer Battalion, and the records of the HHC 2nd Engineer Battalion, 2nd Infantry Division, 8th United States Army located at Camp Castle, Tong Du Chon, South Korea, and ascertained that the chronology does not document the use, storage, spraying, or transporting of herbicides, or show that members of the 2nd Engineer Battalion on the Demilitarized Zone were hauling drums of Agent Orange to Camp Carroll.

The Board finds that these research responses, along with the absence of sufficient evidence reflecting herbicide exposure, show that the Veteran was not exposed to herbicide agents such as Agent Orange during service, including in Korea.  To the extent it may have been determined by a service department or related research agency that a different veteran was exposed to herbicides, those circumstances and facts do not apply to the Veteran's case.  There is one prior Board decision in another veteran's case wherein certain benefits were granted, but not due to herbicide exposure.  Moreover, Board decisions are nonprecdential in nature and each case will be decided on the basis of the individual facts of the case.  See 38 C.F.R. § 20.1303.  Accordingly, the preponderance of the evidence is against these claims based on the theory of herbicides/Agent Orange exposure during service.

Lastly, the Board does not find that there is sufficient evidence to show exposure to some other non-herbicide chemical to trigger the duty to assist to provide a medical examination and opinion.  Neither the Veteran, nor any other service records, has shown exposure to chemicals.  See Bardwell Shinseki, 24 Vet. App. 36 (2010) (a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service).  Essentially, this theory is speculative in nature.  Because there is no indication that diabetes mellitus, a heart disorder or bloody stools are related to service in the context of herbicide or chemical exposure, an examination is not warranted under this theory.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Diabetes Mellitus, Heart Disorder and Bloody Stools

The evidence shows current disabilities regarding these three claims.  Medical records confirm a current diagnosis of diabetes mellitus (see, e.g., VA medical records dated in September 2014).  Private medical records dating from 2007 advise of chest pain/atypical chest pain, and there is a diagnosis of "incomplete right bundle branch block" and mitral regurgitation.  See, e.g., private cardiology records dated in June 2009 and December 2012.  There is also medical evidence since 2009 of blood in stools.  See, e.g., private medical records dated in December 2009.  

However, despite the existence of the current disabilities, there is no complaint, diagnosis, or treatment for or symptoms of diabetes, heart problems or bloody stools, in the service treatment records (STRs).  There is also insufficient evidence showing diabetes or a heart disorder in the year after service.  Moreover, aside from the herbicide/chemical exposure theory, there is no expressly raised or reasonably raised theory of service connection such as to warrant a remand for a VA examination or medical opinion (unlike the respiratory disorder claim addressed in the remand).  

In consideration of the evidence of record, the Board concludes that service connection is not warranted for diabetes mellitus, heart disorder or bloody stools.  As the preponderance of the evidence is against the claims of service connection, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

II.  Earlier Effective Date Claims

General Legal Criteria

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400 (b)(2)(i).

Specific to claims to reopen (other than in cases where service department records were received after the final disallowance), the effective date for the grant of service connection based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(r). 

The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing."  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155 (2014).  Although VA has amended the claims filing process to require the filing of proper standard forms, the "informal claim" provisions are for proper application given the time period in which the veteran's claims were filed.  

If a Veteran does not file a timely notice of disagreement within one year of receiving notice of an agency determination, the decision becomes final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 
TBI

In August 1980, the Veteran separated from active duty service and that month he filed an application for benefits that included a claim of service connection for headaches.  In a rating decision dated in March 1981, the RO denied service connection for headaches.  In that decision, the RO considered that the Veteran had complained of head pain in July 1980.  The Veteran did not appeal that decision.  As explained in a prior Board, that decision is final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 

In March 1993, the Veteran filed a new claim regarding headaches; and in a letter dated in July 1993 the RO notified him that his claim had been denied.  In that letter, the RO notified the Veteran that he had until May 18, 1994, to submit evidence in support of his March 1993 claim; and provided the Veteran with his appeal rights.  No further evidence or argument was submitted by the Veteran until February 1995, so the July 1993 decision is also final.  Id.

In February 1995, the Veteran filed a formal application for benefits that included a claim of service connection head injury.   In a rating decision dated in April 1995 the RO denied service connection for head injury.  In that decision the RO again noted that the Veteran had complained of head pain in July 1980, but denied the claim on grounds that there was no evidence of head injury during service.  The Veteran appealed the April 1995 rating decision and, following numerous remands, the Board denied the claim in June 2009 on the grounds that the Veteran's headache condition was not shown to be causally or etiologically related to service or to any head injury therein.

In June 2009, the Veteran appealed the Board's June 2009 denial of his claim to the United States Court of Appeals for Veterans' Claims (Court) and, in an October 2010 Memorandum Decision, the Court vacated the June 2009 Board decision and remanded the matter to the Board.  

In May 2011, the Board remanded the matter for further development and, in a rating decision dated in January 2013, the Appeals Management Center (AMC) granted service connection for "traumatic brain injury (TBI) (previously also claimed as headaches and head injury)" with an effective date of February 8, 1995.

The Veteran contends that he is entitled to an effective date of 1980 for the grant of service connection because he first filed the claim in August 1980; however, as stated above, that claim was denied in March 1981, and it was not appealed.  A subsequent denial of the claim in July 1993 (issued in response to a March 1993 claim) was also not appealed.  In February 1995 the Veteran filed the claim from which this appeal stems and there is no prior unadjudicated claim of service connection for head injury residuals (previously claimed as headaches and head injury) before the February 1995 claim.  To the extent an August 1984 statement constituted an informal claim, the claim was extinguished by the July 1993 denial.

Essentially, the February 1995 claim was a claim to reopen (which VA effective did); thus, the earliest possible effective date for the Veteran's reopened claim of service connection for TBI is February 8, 1995-the date his claim to reopen was received by VA.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(r).  See Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d. 1333, 1337 (Fed. Cir. 2005).

Another avenue in which to obtain an earlier effective date is to make a request for revision in a prior final decision on the basis of clear and unmistakable error (CUE).  In the Veteran's case, the Board does not find that a CUE request has been expressly made or reasonably raised by the record even with a sympathetic reading.

Therefore, the criteria for an effective date earlier than February 8, 1995, for the grant of service connection for TBI are therefore not met and the benefit-of-the-doubt doctrine does not apply as the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Tinnitus

In a rating decision dated in July 2015, the RO granted service connection for tinnitus effective August 30, 2012.  The Veteran contends that he is entitled to an effective date in 1977 or 1995 as he entered service with hearing loss because a July 1977 audiogram showed mild hearing loss and because his TBI claim is effective in 1995 and the hearing loss was caused by the TBI.

Although a July 1977 entrance examination may show preexisting hearing loss, effective dates are set based on when entitlement arose and claim dates.  Here, the Veteran never filed a service connection claim for tinnitus; instead it was sua sponte raised by the RO based on the record.  The grant of service connection for tinnitus stems from an August 2012 VA examination (conducted on August 30, 2012) noting tinnitus, which a subsequent VA examiner stated was causally related to the Veteran's service-connected TBI.  See February 2015 VA medical opinion.

As set out in 38 C.F.R. § 3.310(a), when service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Consequently, the effective date of the Veteran's secondary hearing loss cannot be earlier than the effective date of his primary TBI, which is February 8, 1995; so the Veteran's contention regarding the 1977 date does not result in an earlier effective date.  

Moreover, there is no medical record or lay complaint of tinnitus, after the February 8, 1995, effective date of service connection for TBI, until the August 30, 2012, VA examination.  Therefore, entitlement did not consequently arise until the August 30, 2012 VA examination findings of tinnitus.  The Board accordingly finds that the criteria for an effective date prior to August 30, 2012, for the grant of service connection for tinnitus are not met and the benefit-of-the-doubt doctrine does not apply as the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Hearing Loss

In the rating decision dated in July 2015, the RO also granted service connection for bilateral hearing loss effective October 11, 2012.  The Veteran contends that an earlier effective date is warranted for the same reasons as for tinnitus.  

A similar analysis applies to the hearing loss effective date claim.  However, the earlier August 30, 2012 date is also proper for the hearing loss grant.  Although testing did not show hearing loss until an October 11, 2012 VA examination, the August 30, 2012 examiner noted that hearing loss was secondary to the Veteran's TBI.  That finding of hearing loss (even without the testing) is consistent with the subsequent diagnosis on October 11, 2012.  Therefore, the Board finds that entitlement arose for bilateral hearing loss on August 30, 2012, same as tinnitus.

Accordingly, the criteria for an effective date of August 30, 2012, for the grant of service connection for hearing loss are met.  However, for the same reasons as for the tinnitus claim, an even earlier date is not warranted and the benefit-of-the-doubt doctrine does not apply as the preponderance of the evidence is against an earlier effective date.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Erectile Dysfunction 

In addition to the foregoing, the Veteran seeks an effective date prior to April 11, 2013, for the grant of service connection for erectile dysfunction, which was also granted in the July 2015 rating decision as secondary to the Veteran's service-connected PTSD disability (which in turn has been effective since February 8, 1995).  

VA medical records dating from 1981 and private medical records dating from 1983 advise of erectile dysfunction.

In August 1984, the Veteran submitted his own handwritten statement regarding, among other things, his sexual dysfunction.  In that letter he mentioned that his mental health condition was causing sexual problems and requested VA assistance; and in his July 2015 notice of disagreement he indicated that he had applied for erectile dysfunction in the 1980s.  The Board finds that the August 1984 communication from the Veteran contained a claim for service connection for erectile dysfunction.  See 38 C.F.R. § 3.155 (2014); Brokowski, 23 Vet. App. at 84. 

As stated before, the effective date of the grant of secondary erectile dysfunction will be the date of receipt of his claim for erectile dysfunction or the date entitlement to arose, whichever is later.  Ross, 21 Vet. App. at 528.  

On review of the record the Board finds that the RO first denied the claim in March 2014.  In that decision, the RO indicated that the action was taken pursuant to "a new claim for benefits that was received on February 15, 2013; and in its July 2014 statement of the case the RO referenced claims received on February 28, 2013; April 11, 2013, and June 11, 2014.  However, at the time of the March 2014 rating decision the Veteran's August 1984 claim of service connection for erectile dysfunction was still pending and unadjudicated.  

Although there is an earlier claim, the effective date is February 8, 1995, which is the effective date of the primary disability in PTSD.  Based on these facts, the Board finds that an effective date of February 8, 1995 (the date entitlement arose) is warranted for the grant of service connection for erectile dysfunction secondary to PTSD.  The preponderance of the evidence is against an earlier date, and the benefit-of-the-doubt doctrine is not applicable, because a secondary disability cannot have an earlier effective date than the primary service-connected disability.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

III.  Increased Rating Claims  

General Legal Criteria

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C.A. § 1155.  Generally, the degrees of disability specified 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.

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.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

Hearing Loss

	Background and Specific Rating Criteria

In a rating decision dated in July 2015, the RO granted service connection for bilateral hearing loss with a noncompensable (zero percent) rating effective October 11, 2012; increased to 20 percent effective January 8, 2015.  The Veteran has appealed for a higher initial rating and, given the Board's decision above, the initial rating will now be considered from August 30, 2012.

In cases for which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations will be conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).  The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing.  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.  The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  Id.

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing.  An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater; or when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(a), (b).

      Facts and Analysis

On VA audiology examination in October 2012, the Veteran reported that he sometimes had difficulty hearing and needed to ask people to repeat themselves.  Puretone thresholds were as follows:

Hertz
1000
2000
3000
4000
Right ear
30
25
30
35
AVG:  30
Left ear
25
20
25
25
AVG:  23.75

Speech recognition scores were 100 percent in the each ear, which the examiner cautioned was not adequate for rating purposes.  The October 2012 findings correspond to level I impairment in each ear, which equates to a noncompensable (zero percent) rating.  38 C.F.R. § 4.85, Tables VI and VII.    

On September 2, 2013, the Veteran was examined by a private audiologist, who found right ear thresholds at 1000, 2000, and 4000 Hertz of 85, 100, and 105 decibels, respectively; left ear thresholds at 1000, 2000, and 4000 Hertz of 90, 100, and 105 decibels, respectively; and speech recognition scores of 100 percent in the right ear and 88 percent in the left ear.  Thresholds at 3000 Hertz were not reported.  Moreover, the audiologist did not state that a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test was used.  This evidence is therefore not suitable for VA rating purposes.

On September 6, 2013, the Veteran was accorded another VA audiology examination.  It was noted that the Veteran has to ask for repetition, turns up the volume on the TV, and is not sure what people say.  Puretone thresholds were as follows:

Hertz
1000
2000
3000
4000
Right ear
50
55
60
60
AVG:  56.25
Left ear
35
35
45
50
AVG:  41.25

Speech recognition scores were 80 percent in the right ear, and 68 percent in the left ear.  However, the VA examiner explained that the speech recognition scores were not appropriate to use.  Based on Table VIa, these findings correspond to level IV in the right ear and level I in the left ear, which equates to a rating of zero percent.  38 C.F.R. § 4.85, Table VII.  

In January 2015, the Veteran was accorded another VA audiology examination, during which he complained of difficulty hearing in noisy environments; in group situations; and from a distance.  Puretone thresholds were as follows:

Hertz
1000
2000
3000
4000
Right ear
60
60
65
70
AVG:  63.75
Left ear
60
60
65
70
AVG:  63.75

Speech recognition scores were 84 percent in the right ear, and 88 percent in the left ear.  These findings correspond to level III impairment in each ear, which equates to a schedular rating of zero percent pursuant to 38 C.F.R. § 4.85, Tables VI and VII.  However, these findings also reflect an exceptional pattern of hearing (see 38 C.F.R. § 4.86(a)), and evaluation based solely on puretone threshold results corresponds to Level V impairment in each ear, which equates to a schedular rating of 20 percent, each ear.  38 C.F.R. § 4.86, Tables Via, VII.

On July 17, 2015, the Veteran was again examined by his private audiologist, who found right ear thresholds at 1000, 2000, and 4000 Hertz of 100, 110, and 110+ decibels, respectively; left ear thresholds at 1000, 2000, and 4000 Hertz of 100, 105, and 110+ decibels, respectively; and speech recognition scores of 40 percent in each ear.  The audiologist added that there was a "significant" decrease in hearing since the September 2, 2013, evaluation.  Hearing thresholds at 3000 Hertz were not reported and, again, the audiologist did not state that a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test was used.  This evidence is therefore not suitable for VA rating purposes.

In correspondence dated in December 2015, the Veteran's private audiologist wrote that the examination was conducted by a state licensed audiologist; included a controlled speech discrimination test; and was conducted with and without hearing aids; and it appears that he was referring to the July 17, 2015 audiogram.  However, as stated before, hearing thresholds at 3000 Hertz were not reported.  

The Board finds that the VA audiology examinations represent the most probative evidence for evaluating the Veteran's hearing loss rating claim as they contain the requisite testing to apply to the rating criteria.  Lendenmann, 3 Vet. App. at 345.  Based on VA test findings a noncompensable rating is warranted prior to January 8, 2015, when the criteria for a rating of 20 percent became factually ascertainable.  These are the ratings that have already been assigned for these periods.  Accordingly, the benefit-of-the-doubt doctrine is not applicable as the preponderance of the evidence is against higher initial ratings for bilateral hearing loss.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Tinnitus

In July 2015, the RO granted service connection for tinnitus with a rating of 10 percent effective August 30, 2012, under the recurrent tinnitus provisions of Diagnostic Code 6260.  The Veteran seeks an initial rating in excess of 10 percent.  

Diagnostic Code 6260 provides for a maximum schedular rating of 10 percent for tinnitus; whether the sound is perceived in on ear, both ears, or in the head.  See 38 C.F.R. §4.87, Diagnostic Code 6260.

In this case, there is no legal basis upon which to award a higher rating for tinnitus, as the maximum rating for tinnitus has already been assigned.  The Veteran's claim for such a benefit is consequently without legal merit and must be denied.  See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994).

Erectile Dysfunction

In the July 2015 rating decision, the RO also granted service connection for erectile dysfunction secondary to PTSD, with an assigned rating of zero percent under Diagnostic Code 7522 effective April 11, 2013; and awarded special monthly compensation based on loss of use of creative organ under 38 C.F.R. § 3.350 effective April 11, 2013.  As discussed above, the Board has determined that the appropriate effective date for the grant of service connection for erectile dysfunction is February 8, 1995, and so will consider the merits of the Veteran's claim since that date.

The Rating Schedule provides that if there is deformity of the penis associated with loss of erectile power, such impairment warrants a 20 percent evaluation.  38 C.F.R. § 4.115b, Diagnostic Code 7522.  There is no other possible rating under Diagnostic Code 7522, but the schedule does provide that in every instance where the schedule does not provide a noncompensable evaluation for a Diagnostic Code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The ratings schedule does not provide a Diagnostic Code solely for rating erectile dysfunction.  Instead, such impairment is compensated by SMC at the statutory rate for loss of use of a creative organ, pursuant to 38 U.S.C.A. § 1114(k).

In this case there is no physical deformity of the penis, so the criteria for a compensable rating under Diagnostic Code 7522 are not met.  There is no reasonable doubt to resolve as the preponderance of the evidence is against a compensable rating.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  However, the Veteran has erectile dysfunction secondary to his service-connected PTSD.  SMC based on loss of use of creative organ is accordingly warranted since February 8, 1995; the effective date of service connection for erectile dysfunction.   38 U.S.C.A. 1114(k), 38 CFR 3.350(a).
TBI

	Background and Specific Rating Criteria

In a rating decision dated in January 2013, the AMC granted service connection for traumatic brain injury (previously also claimed as headaches and head injury) with a rating of 10 percent effective February 8, 1995, followed by a rating of 40 percent effective August 30, 2012.  The Veteran has appealed for a higher initial rating.

The Veteran's TBI disability has been rated under Diagnostic Code 8045 throughout the appeal period.

Effective October 23, 2008, during the pendency of this appeal, VA amended the Schedule for Rating Disabilities by revising that portion of the Schedule that addresses neurological conditions and convulsive disorders.  See 73 Fed. Reg. 54693-706 (Sept. 23, 2008).  The effect of this action is to provide detailed and updated criteria for evaluating residuals of TBI.  These amendments revised 38 C.F.R. § 4.124a, Diagnostic Code 8045, and became effective October 23, 2008; and apply to all applications for benefits received by VA on or after October 23, 2008.  

When, as here, the governing laws or regulations change during the pendency of an appeal, the most favorable version generally will be applied.  This determination depends on the facts of each case.  Whichever version applies, all evidence on file must be considered, but the amended version shall apply only prospectively to periods from and after the effective date of the amendment.  See VAOPGCPREC 7-2003 (Nov. 19, 2003).  The prior version shall apply to periods preceding the amendment but may also apply after the effective date of the amendment.  VAOGCPREC 3-2000 (Apr. 10, 2000).

A veteran whose residuals of TBI were rated by VA under a prior version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, may request review under the new rating criteria, irrespective of whether his disability has worsened since the last review.  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 C.F.R. § 3.114, if applicable.  See Schedule for Rating Disabilities; Evaluation of Residuals of TBI, Diagnostic Code 8045, Note (5).

In this case, the Veteran's claim for an increased rating for TBI residuals was received prior to October 23, 2008, the effective date of the amended rating criteria of Diagnostic Code 8045.  Accordingly, the Board will consider both the old and new rating criteria.  For the period prior to October 23, 2008, only the old rating criteria for brain disease due to trauma may be applied.  Conversely, from October 23, 2008, the revised criteria for TBI residuals may also be applied if they are more beneficial to the Veteran.  

Under the provisions of Diagnostic Code 8045 in effect prior to October 23, 2008, purely neurological disabilities associated with the injury, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., were rated under the diagnostic code specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207).  38 C.F.R. § 4.124a.  Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were rated 10 percent and no more under Diagnostic Code 9304, and could not be combined with any other rating for a disability due to brain trauma.  Finally, ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (as in effect prior to October 23, 2008).

Effective October 23, 2008, the criteria at 38 C.F.R. § 4.124a, Diagnostic Code 8045 were amended to provide for evaluation of the 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. 

Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms.  A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets.  If no facet is "total," then the overall percentage evaluation is based on the highest facet.  A 70 percent evaluation is assigned if "3"is the highest level of evaluation for any facet.  If the highest level of evaluation for any facet is "2," then the appropriate disability rating is 40 percent.  A 10 percent rating is warranted when the highest level of evaluation for any facet is "1"; and a noncompensable (0 percent) rating is assigned when the level of the highest facet is "0."  Id.

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.  Cognitive impairment should be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."  Id.

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction.  Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."  However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headaches or Meniere's disease, even if that diagnosis is based on subjective symptoms, should be separately rated, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table.  Id. 

Emotional/behavioral manifestations are rated under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder.  Id. 

Physical (including neurological) manifestations are rated 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.  Id.  

Residuals not listed here that are reported on an examination shall be evaluated, separately, under the most appropriate diagnostic code, as long as the same signs and symptoms are not used to support more than one evaluation.  The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.  Id. 

The need for SMC is to be considered 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. 

In cases where there is an overlap of manifestations of conditions listed under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code, one evaluation shall be assigned 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.  Id. at Note (1), effective October 23, 2008.  Under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, the level of impairment of subjective symptom facets are rated as follows: 

Level zero (0 percent) reflects subjective symptoms that do not 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 are mild or occasional headaches and/or mild anxiety.  

Level 1 (10 percent) is assigned where three or more subjective symptoms 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, and/or hypersensitivity to light.  

Level 2 (40 percent) is assigned for 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, and/or headaches requiring rest periods during most days.  38 C.F.R. § 4.124a, Diagnostic Code 8045, effective October 23, 2008.  

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.  Id. at Note (2).  

"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.  Id. at Note (3).

The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI 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.  Id. at Note (4).   

The rating assigned is based on the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified, as determined on examination.  Only one evaluation is assigned for all the applicable facets.  A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination.  Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of TBI are rated separately.  Id.

Diagnostic Code 8100 provides for evaluation of migraine headaches.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under Diagnostic Code 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months.  A 30 percent rating for migraine headaches is warranted where there are characteristic prostrating attacks occurring on an average once a month over last several months.  A maximum rating of 50 percent is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id. 

      Facts

On VA TBI examination in August 2012, the examiner ascertained that the Veteran had 3 or more subjective symptoms of TBI that moderately interfere with work, instrumental activities of daily living, family, and other close relationships, identified as neuro-irritability, cognitive dysfunction, chronic severe migraine headaches, tinnitus and hearing loss, blurred foggy vision, depression, and PTSD.

On VA TBI examination in October 2012, the examiner noted that the Veteran had had headaches and associated dizziness and lightheadedness about 2 to 3 times a week since his service in Korea, with pain mainly located in the occipital region.  He further averred that there were 3or more subjective symptoms that moderately interfered with work, instrumental activities of daily living, family, or other close relationships, which he identified as headaches, fatigue, insomnia, blurry vision, and a mental disorder, including PTSD.

On VA headaches examination in October 2012, the Veteran complained of headaches, since around 1980, at a rate of once, twice, or sometimes more a week, lasting for many hours, even days.  He stated that the headaches, which he said "can be quite severe," generally began in the back of the head with stiffness and pain in the neck and the occipital head region radiating over the convexity, but denied nausea or vomiting.  He added that he occasionally was bothered by light, but not sound, and that he was not prevented from carrying on his usual activities.  The examiner opined that the Veteran's headaches were not prostrating headaches.  

During the October 2012 VA headaches examination, the Veteran also described episodes of passing out and losing consciousness; and said that he sometimes "shakes and has loss of vision and dizziness and then passes out."  He also described tongue bite and episodes of urinary incontinence.  He added that his last such episode had been about 2 weeks prior.  He also complained of dizziness and blurred vision with headaches but not otherwise; episodes in the past of left-sided weakness, which resolved as the headache resolved; episodes of tingling in his legs with headaches; and, at times, unsteadiness that could manifest sporadically with no connection with headaches.  The diagnosis was "chronic headaches, possibly a form of migraine," which the examiner averred were nonprostrating and did not seem to interfere with activity.

On VA optometry examination in October 2012, the examiner concluded that there was "Dot heme OD secondary to trauma associated with headaches VS systemic history," "photophobia which is more likely than not related to the TBI," and blurry vision that occurs when the Veteran changes his posture (from lying down to sitting upright), which the examiner felt was "less likely to be a result of the TBI."

On VA neuropsychological-TBI screening in December 2012, the examiner stated that the Veteran "currently does not report having significant cognitive difficulties, and cognitive testing administered during this evaluation cannot reliably identify any deficits;" however, the examiner concluded that the Veteran's social interaction was occasionally inappropriate; that the Veteran's visuospatial orientation was mildly impaired with the Veteran occasionally getting lost in unfamiliar surroundings and with difficulty reading maps or following directions but able to use assistive devices such as GPS; and that the Veteran had one or more neurobehavioral effects that occasionally interfered with workplace interaction, social interaction, or both, including weekly headaches secondary to his TBI and occasional irritability and moodiness.

In January 2015, the Veteran underwent another VA TBI examination.  During that examination he complained of ongoing headaches, dizziness, and lapse of memory/forgetfulness.  He also complained of left temporal headaches some 3 to 4 times per week with light sensitivity; and of seizures, which he said were brought on by coughing, followed by shaking.  Clinical assessment found TBI-related cognitive impairment and subjective symptoms, identified as mild memory loss; occasionally inappropriate social interaction (such as tendency to isolate/not want to be around other people, and anger issues); mildly impaired visual spatial orientation (getting lost in unfamiliar surroundings); mild or occasional headaches 3-4 times a week, treated with Tylenol; mild anxiety; irritability; and verbal aggression.

In January 2015, the Veteran was accorded a VA seizure disorders examination.  During the examination he reported feeling "faint and dizziness" after the 1980 head injury.  The examiner noted that the Veteran had been seen by several neurologists but had not been treated with anticonvulsants.  According to the examiner, "it is at least as likely as not that the "claimed seizures" are not true seizures and really represent anxiety episodes."

Analysis

Preliminarily, the Board notes that the Veteran is already separated service connected and compensated for his residual psychiatric and hearing complaints to the extent those are associated with the TBI.  Consequently, they may not support an evaluation under Diagnostic Code 8045 as such would be tantamount to pyramiding.  See 38 C.F.R. § 4.14.  

Based on the lay and medical evidence of record, the Board finds that the Veteran's service-connected TBI has been productive of residual blurred vision, headaches, and photosensitivity throughout the appeal period.

As for a rating higher than 10 percent prior to March 15, 2013, for TBI with post-traumatic headaches and photosensitivity, the Veteran did not have a diagnosis of multi-infarct dementia associated with brain trauma, so a higher rating under the old schedular criteria at Diagnostic Code 8045 is not warranted.  See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (as in effect prior to October 23, 2008).

However, the Veteran has had at least 3 subjective symptoms (blurred vision, headaches, photosensitivity, fatigue, and insomnia) that moderately interfere with work, instrumental activities of daily living, and close relationships, and according the Veteran all reasonable doubt, the Board finds that these symptoms more nearly approximate the highest level of impairment of "2" in the "subjective symptoms" facet of the TBI schedular rating criteria.  See 38 C.F.R., Chapter 4, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.  See also 38 C.F.R. § 4.7.  This meets the criteria for a rating of 40 percent under the current criteria at Diagnostic Code 8045; effective October 23, 2008.  Thus, the rating is warranted from the effective date of the amended rating criteria.

As for a higher rating under some other potentially applicable schedular criteria (which in this case is Diagnostic Code 8100), the evidence does not reflect migraine headaches with characteristic prostrating attacks occurring on an average once a month prior to October 23, 2008, so the criteria for an initial rating higher than 10 percent prior to October 23, 2008, under Diagnostic Code 8100 are not met.  Nor has the Veteran had headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, so the criteria for a rating higher than 30 percent since October 23, 2008, under Diagnostic Code 8100 are not met.  Accordingly, the headaches are considered part and parcel of the TBI rating.

The Board notes that the Veteran has also professed to having "seizures" brought on by coughing, followed by shaking, then faintness and dizziness, following by passing out/losing consciousness, tongue biting, and urinary incontinence; however, according to the January 2015 VA seizure examiner, these symptoms are not due to the Veteran's TBI.  The examiner added that these symptoms "are not true seizures and really represent anxiety episodes;" and, as stated before, the Veteran is already separately service-connected and compensated for his psychiatric symptoms.  There is no medical evidence of record to the contrary.  A separate rating for residual seizures is therefore not warranted.  See 38 C.F.R. § 4.124a, Diagnostic Code 8045, providing that physical dysfunction (including seizures) shall be separately rated under an appropriate diagnostic code.

The Veteran has also reported episodes of left-sided weakness, and of tingling in his legs, during his headaches; which he says resolve when the headache resolves.  See October 2012 VA headaches examination.  These physical [motor and sensory dysfunction, including pain of the extremities; and coordination and balance problems] symptoms are addressed in the remand portion of this decision.  

Finally, the Veteran has also complained of mild memory loss, such as forgetting where he has placed his keys; mildly impaired visual spatial orientation.  This impairment is contemplated in the 100 percent rating for his separately service-connected residual psychiatric disorder.  He has also complained of a tendency to isolate/not wanting to be around other people, irritability, anxiety, and anger issues.  These symptoms are also contemplated and already compensated by the 100 percent rating for the Veteran's separately service-connected residual psychiatric disorder.

In sum, the 40 percent rating for TBI is warranted earlier from October 23, 2008.  However, the preponderance of the evidence is against higher, earlier or separate ratings for TBI.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.



ORDER

Service connection for diabetes is denied.

Service connection for a heart disorder is denied.

Service connection for blood in stool is denied.

An effective date prior to February 8, 1995, for the grant of service connection for TBI is denied.

An effective date prior to August 30, 2012, for the grant of service connection for tinnitus is denied.

An effective date of August 30, 2012, but no earlier, for the grant of service connection for hearing loss is granted; subject to the law and regulations governing payment of monetary benefits.

An effective date of February 8, 1995, for the grant of service connection for erectile dysfunction is granted; subject to the law and regulations governing payment of monetary benefits.

An initial compensable rating for bilateral hearing loss prior to January 8, 2015, and in excess of 20 percent thereafter, is denied.

An initial disability rating higher than 10 percent for tinnitus is denied.

SMC for erectile dysfunction since February 8, 1995, is granted; subject to the laws and regulations governing the payment of monetary awards.

An initial compensable disability rating for erectile dysfunction is denied.

An initial disability rating of 40 percent from October 23, 2008, for TBI, but not higher or earlier, is granted, subject to the law and regulations governing monetary payments.


REMAND

With regard to the claim of service connection for a respiratory disorder, a theory of direct service connection is reasonably raised by the record.  STRs show that the Veteran was hospitalized for eight days in July 1980.   X-rays revealed the partial opacification of the frontal sinus, and the diagnosis was frontal sinusitis.  After service, the Veteran has been treated for allergic rhinitis.  See, e.g., private medical records dated in March 2014.  The Board finds that a remand is warranted for this claim for a VA examination and medical nexus opinion.  See McLendon, 20 Vet. App. at 79.  

Although the decision addressed the rating for TBI residuals, the issue of whether a separate rating is warranted for motor and sensory dysfunction and coordination and balance problems remains on appeal.  During the October 2012 VA examination, the Veteran complained of episodes of left-sided weakness and tingling in his legs during his headaches that resolves as his headache resolve; and of occasional unsteadiness, which the examiner remarked seemed to have no connection with the headaches.  

VA TBI regulations provide that physical manifestations of TBI (including, inter alia, motor and sensory dysfunction, including pain of the extremities; and gait, coordination, and balance problems) are to be rated under an appropriate diagnostic code.  38 C.F.R. § 4.124a, Diagnostic Code 8045.  

The October 2012 VA examiner did not provide a diagnosis regarding the Veteran's complained of left sided weakness, pain of the extremities, and balance problems, or offer an opinion as to the etiology of these complaints.  Thus, the Board finds that this aspect of the TBI rating claim should be remanded for an addendum opinion.

Accordingly, these issues are REMANDED for the following actions:

1.  Schedule the Veteran for a VA examination with regard to his claim of service connection for a respiratory disorder.  The claims file must be reviewed by the examiner.  The examiner must also discuss the Veteran's in-service and current complaints and symptoms with the Veteran and document said in the examination report.  All indicated tests, including x-rays, should be done, and all findings reported in detail.

The examiner should identify the Veteran's respiratory disorder.

The examiner is then requested to opine, for each identified respiratory disorder, whether it is at least as likely as not (50 percent or greater probability) that the disorder began during or is related to some incident of active duty service.  

In formulating the requested opinion the examiner should note that the Veteran received eight days inpatient care for frontal sinusitis during service. 

A rationale for all opinions reach must be provided.  

2.  Return the claims file to the October 2012 VA headaches examiner for an addendum opinion.  The claims file should be reviewed by the examiner.  The examiner is then requested to identify the disability (diagnosis) leading to the Veteran's left-sided weakness, leg tingling, and unsteadiness; and, for each diagnosis, opine as to the etiology of the disorder.  

A rationale for all opinions reach must be provided.  

If the examiner determines that further diagnostic testing and/or a new examination is necessary to answer the questions, then a new examination should be scheduled.

3.  Finally, after completion of all of the above, and any other necessary development, readjudicate the claims remaining on appeal.  If any benefit remains denied, issue a supplemental statement of the case and return the case 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112.




______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs