Citation Nr: 1753713 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-20 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a right elbow disability, to include cubital tunnel syndrome and/or epicondylitis. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to an initial compensable disability rating for left ear hearing loss. 5. Entitlement to an initial disability rating in excess of 30 percent for major neurocognitive disorder and anxiety disorder prior to January 12, 2017, and in excess of 70 percent thereafter. 6. Entitlement to an initial disability rating in excess of 10 percent for lumbar spondylosis prior to June 8, 2016, and in excess of 20 percent thereafter. 7. Entitlement to an initial disability rating in excess of 10 percent for migraine headaches prior to April 30, 2012, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and His Wife ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from December 1981 to April 1982, from September 2002 to August 2003, and from April 2009 to May 2010, to include service in the Persian Gulf and Southwest Asia. He also had periods of active duty for training (ACDUTRA) in the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in September 2010, March 2011, June 2012, and April 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in December 2015, when it was remanded for further development, to specifically include obtaining additional VA medical examinations and opinions. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's hearing acuity in his right ear is not shown to meet the definition of hearing loss disability for VA compensation purposes. 2. The Veteran is shown to have sustained an injury in service which resulted in a right elbow disability diagnosed as cubital tunnel syndrome and medial and lateral epicondylitis. 3. The Veteran is not shown to have sleep apnea and his sleep disturbance symptoms are shown to be included in the ratings for other service-connected disabilities. 4. The Veteran's left ear hearing loss disability is not shown to have been any worse than a Roman Numeral II on Table VIA. 5. Prior to November 17, 2015, the Veteran's neurocognitive and anxiety disorder were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; reduced reliability and productivity were not shown. 6. From November 17, 2015 to January 12, 2017, the Veteran's neurocognitive and anxiety disorders were productive of occupational and social impairment with reduced reliability and productivity; deficiencies in most areas were not shown. 7. From January 12, 2017 to September 13, 2017, the Veteran's neurocognitive and anxiety disorders were productive of occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not shown. 8. As of September 13, 2017, the Veteran's neurocognitive and anxiety disorders have been productive of total occupational and social impairment. 9. Prior to June 8, 2016, the Veteran's lumbar spine range of motion was greater than 60 degrees of flexion and 120 degrees of combined range of motion; after June 8, 2016, the Veteran's lumbar spine range of motion was greater than 30 degrees of flexion, with no evidence of ankylosis. 10. Prior to November 1, 2011, the Veteran's migraine headaches were not productive of severe headaches that were prostrating in nature occurring more than once a month; prior to April 30, 2012, the Veteran's migraine headaches were not productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for service connection for a right elbow disability, to include cubital tunnel syndrome and medial and lateral epicondylitis, have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for an initial compensable disability rating for left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.85 (2017). 5. The criteria for an initial disability rating in excess of 30 percent for neurocognitive and anxiety disorders prior were not met to November 17, 2015. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9400 (2017). 6. From November 17, 2015 to January 12, 2017, the criteria for a disability rating of 50 percent, and no higher, for neurocognitive and anxiety disorders were met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9400 (2017). 7. From January 12, 2017 to September 13, 2017, the criteria for a disability rating in excess of 70 percent for neurocognitive and anxiety disorders were not met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9400 (2017). 8. As of September 13, 2017, the criteria for a disability rating of 100 percent for neurocognitive and anxiety disorders were met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9400 (2017). 9. The criteria for an initial disability rating in excess of 10 percent for lumbar spondylosis prior to June 8, 2016, and in excess of 20 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5237-5243 (2017). 10. The criteria for an initial disability rating in excess of 10 percent for migraine headaches prior to November 1, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 11. The criteria for a disability rating of 30 percent for migraine headaches, and no higher, were met as November 1, 2011. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 12. The criteria for a disability rating of 50 percent for migraine headaches were met as of April 30, 2012. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claims in April 2010. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. These include records from the Social Security Administration (SSA) and private treatment providers. The Veteran has undergone multiple VA examinations related to the many disabilities on appeal. See VA examinations from May 2010, June 2010, February 2011, April 2012, June 2012, December 2014, May 2016, June 2016, July 2016, January 2017, March 2017, and May 2017. There is no argument or indication that these examinations are inadequate or that their findings do not reflect the current severity of the disability. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's issues on appeal. As such, the Board will proceed with consideration of the Veteran's appeal. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present (at any time during the pendency of the claim, see McClain v. Nicholson, 21 Vet. App. 319, 323 (2007)) disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain, 21 Vet. App. at 323. Facts and Analysis Right Ear Hearing Loss The Veteran seeks service connection for hearing loss in the right ear; hearing loss in the left ear is already service-connected. VA has specific regulations and descriptions of hearing loss when it is defined as a disability for compensation purposes. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A May 2010 VA examination showed that the Veteran had bilateral hearing loss that was worse in the left ear, as well as tinnitus in the left ear. (See VA Exam, received 05/13/2010, p. 1.) He had a history of active duty service in Iraq for about a year with noise exposure to tanks, diesels, planes, daily mortar rounds and IED blasts. He also had limited occupational noise exposure in his civilian work at Fed Ex and Northwest Airlines and exposure to impact wrenches during National Guard service. Audiometric testing showed that his pure tone thresholds in the right ear were 10, 20, 20, 30, and 35 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, for an average of 26.25 decibels. The examiner noted that the Veteran had normal hearing in the right ear through 2000 Hertz and mild sensorineural high frequency hearing loss in the 3000 to 6000 Hertz range. An audiometric test of the Veteran's hearing conducted at VA in December 2011 did not yield accurate results. (See Legacy Content, CAPRI, received 01/20/2012, p. 42.) In April 2012 the Veteran underwent audiometric testing at VA. His hearing acuity in the right ear was described as being within normal limits. (p. 3.) A May 2016 VA examination showed inaccurate results on audiometric testing of the Veteran's hearing. (See VA Exam, received 05/09/2016, p. 2.) Specifically, the examiner stated that the test results were too inconsistent to record because there was a lack of agreement between Pure Tone Averages and Speech Reception Thresholds, with a 20 to 30 decibel variability between ascending and descending threshold searches. The Veteran reported that he experienced near constant, bilateral tinnitus. (p. 5.) After reviewing all of the evidence of record, to include that discussed above, the Board finds that hearing loss disability for VA purposes in the Veteran's right ear has not been shown. Neither the May 2010 VA examination nor the April 2012 VA treatment note show that the Veteran's right ear hearing acuity was sufficient to be considered disabling under VA standards. As such, the basic threshold for service connection under Brammer has not been met. The Board acknowledges that the most recent VA examination in May 2016 did not yield results that could be verified and therefore it is not clear whether the Veteran's hearing acuity in his right ear might be worse than at the last testing with verifiable results. However, it is not VA's obligation to produce evidence with respect to the Veteran's claim; rather, the Veteran has the burden to provide evidence to support the benefits sought on appeal. Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). No such evidence has been provided and the Board finds no grounds for a grant of service connection for hearing loss in the right ear. Right Cubital Tunnel Syndrome The Veteran seeks service connection for right cubital tunnel syndrome, which he attributes to an injury in service during a mortar strike when he was startled leaving his bed to get to shelter and banged his elbow on the bedframe. This incident in service is supported by multiple service treatment records, including in August 2009 when he was diagnosed with cubital tunnel syndrome. (See Medical Treatment Records, received 06/30/2010, p. 2; STRs, received 03/25/2013, p. 12.) A VA examination in May 2010 noted the Veteran's complaints of hitting his right elbow on the bunk when he was getting out during a mortar attack. (See VA Exam, received 05/13/2010, p. 7.) After striking his elbow he experienced tingling in the hand and forearm and his hand swelled up; he was treated with an ice pack and therapy. He reported still having occasional problems, including dropping things and tingling in his fourth finger. An EMG was normal. The examiner offered the opinion that despite the tingling in the Veteran's forearm, there was no evidence of cubital tunnel syndrome on examination and none was shown on EMG/NCV testing. A VA examination in June 2010 noted the Veteran's complaints related to cubital tunnel syndrome, including pain radiating to the ring and small fingers, numbness, and tingling. (See VA Exam, received 06/05/2010, p. 2.) The symptoms were exacerbated by moving his elbow into positions in which the funny bone rested on something. He had difficulty lifting things, particularly at work, and described his pain as 10 out of 10. On examination there was tenderness over the cubital tunnel at the elbow, and a positive Tinel's test, but full range of motion. The examiner diagnosed mild cubital tunnel syndrome. A VA treatment note from August 2010 noted a diagnosis of cubital tunnel syndrome with complaints of achy pain and tingling radiating down the right arm along with weakness since the Veteran had injured his arm in Iraq. (See Medical Treatment Records, received 08/31/2010, p. 1.) He had done physical therapy and a home exercise program without any relief of pain and he wore an elbow splint when sleeping. A VA treatment note from July 2011 noted the Veteran's complaints of chronic intermittent symptoms of cubital tunnel syndrome since 2009 when he hit his elbow in the military. (See Medical Treatment Records, received 09/28/2011, p. 27.) An MRI showed findings compatible with medial and lateral epicondylitis. At the Board hearing in June 2015, the Veteran testified that the nerves in his elbow had gotten "messed up" in the 2009 incident and as a result he had numbness and tingling and difficulty holding on to objects. (See Hearing Testimony, received 06/18/2015, p. 41.) A rheumatology evaluation in December 2016 noted evidence of a demyelinating process which was affecting the Veteran's joints, as well as evidence of elbow epicondylitis on examination. (See CAPRI, received 02/03/2017, pp. 91-92.) After considering all of the evidence of record, to include that set forth above, the Board finds that service connection for a right elbow disability, to include cubital tunnel syndrome and epicondylitis, is warranted. Specifically, there is evidence that the Veteran sustained an injury in service with a diagnosis in service of cubital tunnel syndrome. His reports of chronic intermittent pain, numbness, and tingling in his right elbow and hand have been consistent since service separation. The medical evidence, with the exception of the May 2010 VA examination, all noted that the Veteran had a current disability of the right elbow, variously described as cubital tunnel syndrome or medial and lateral epicondylitis, and a relationship between the two is supported by the July 2011 VA treatment note. In short, all of the elements of service connection for this disability have been shown and the preponderance of the evidence demonstrates that a grant of benefits is warranted. Sleep Apnea The Veteran originally filed a claim in March 2012 for service connection of an undiagnosed illness and included sleep apnea on the list of manifestations of such an illness. (See Statement in Support of Claim, received 03/21/2012, p. 1.) A specific rating decision denying sleep apnea could not be located in the file; rather, it was noted to have been denied in a Statement of the Case issued in May 2014. (See Statement of the Case, received 05/12/2014, p. 43.) Although there may be some deficiencies in the procedural history as a result, the Board will adjudicate the claim so as to avoid any prejudice to the Veteran. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has treated it as on appeal and the appellant might have reason to believe it was on appeal). A sleep study was performed in April 2012, which showed a diagnosis of mild sleep disordered breathing as a result of his physical pain and his mental health disabilities. (See CAPRI, received 11/05/2014, p. 315.) The provider stated that there was a low probability of obstructive sleep apnea. At the April 2012 VA examination the Veteran reported having undergone a sleep study two weeks prior but did not have the results yet. (See VA Exam, received 04/30/2012, p. 30.) The Veteran stated that his wife recognized episodes of apnea and he experienced day time fatigue. He was not using a CPAP machine. The examiner reviewed the sleep study and found no evidence of obstructive sleep apnea or periodic limb movements, only evidence of reduced sleep efficiency. (p. 34.) The Veteran stated that he did not get good sleep and felt drained and tired throughout the day. An April 2013 VA treatment note stated that the Veteran had completed a sleep diary which showed that he could go to sleep but could not stay asleep. (See CAPRI, received 11/5/2014, p. 224.) Sources of disruption included pain, stress, and nightmares. He had been evaluated for a sleep disorder in 2012 and it was found that he did not meet the criteria for sleep apnea and most likely had symptoms related to mood disorders and poor sleep architecture. A Disability Benefits Questionnaire (DBQ) completed in November 2014 showed that the Veteran had been evaluated for sleep issues in 2010 and diagnosed with insomnia. (See CAPRI, received 11/05/2014, p. 307.) At the June 2015 Board hearing, the Veteran testified that he had difficulty sleeping and had been diagnosed with sleep apnea. (See Hearing Testimony, received 06/18/2015, p. 29.) He had not been given a CPAP machine because he was one point away from a diagnosis of sleep apnea but had insomnia. (p. 30.) At the January 2017 psychiatric examination, the examiner considered the question of whether the Veteran's sleep disturbance was related to his traumatic brain injury (TBI). (See C&P Exam, received 01/16/2017, p. 7.) The examiner stated that sleep disturbance was at least as likely as not the result of his TBI, but also stated that the Veteran's sleep apnea could cause sleep disturbances. A separate examination for sleep apnea conducted in January 2017 stated that there was no evidence of sleep apnea. (See C&P Exam, received 01/20/2017, pp. 1-2.) Rather, the Veteran had difficulty falling asleep and staying asleep, was tired during the day, and was snoring a lot. A sleep study in April 2017 had been negative for sleep apnea, with no oxygen desaturations shown. The final opinion was that the Veteran's sleep disturbances were not due to sleep apnea, as shown by the sleep study. (See C&P Exam, received 01/20/2017, p. 2.) After reviewing all of the evidence of record, to include that set forth above, the Board finds that service connection for sleep apnea is not warranted. Specifically, the evidence demonstrates that the Veteran does not have a diagnosis of sleep apnea and that multiple providers have found as much. Instead, the Veteran has been shown to have sleep disturbances as a result of his mental and physical health issues, including his TBI, and these symptoms are included in the ratings assigned for those disabilities. Inasmuch as no separate diagnosed disability of sleep apnea has been shown, the Board finds that the basic threshold requirement for service connection has not been met and the claim must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings were assigned for the Veteran's neurocognitive and anxiety disorders, low back disability, and migraine headaches. The Board finds no reason to disturb the assigned disability ratings for the low back disability. The effective dates of the other assigned rating periods have been adjusted as discussed below. Facts and Analysis Left Ear Hearing Loss Hearing loss is rated under the criteria of 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1993). Hearing impairment is determined by averaging the hearing impairment at each of the four designated frequencies (1000, 2000, 3000, and 4000 Hertz). This results in a Puretone Threshold Average for each ear. The Puretone Threshold Average is charted, in conjunction with the Speech Discrimination Percentage for that ear, in Table VI of 38 C.F.R. § 4.85. This results in a score, expressed as a Roman numeral, for each ear. The Roman numeral scores for both ears are then charted in Table VII of 38 C.F.R. § 4.85, and the intersection of the scores provides the percentage of disability. 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment, which cannot always be accurately assessed under the standards of 38 C.F.R. § 4.85, may be evaluated under the provisions of 38 C.F.R. § 4.86. These provisions apply when either the puretone threshold at each of the four specified frequencies is 55 decibels or more, 38 C.F.R. § 4.86(a), or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 38 C.F.R. § 4.86(b). If either of these provisions applies, each ear is evaluated separately. See 38 C.F.R. § 4.86. The Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIa, whichever results in the higher numeral. When 38 C.F.R. § 4.86(b) is applicable, the assigned numeral is elevated to the next higher Roman numeral. Id. Table VIa will also be applied when an examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). The Veteran is currently service connected for hearing loss in the left ear only, which is rated as noncompensable (0 percent disabling). If impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice connected ear will be assigned a Roman Numeral designation of I. 38 C.F.R. § 4.85(f). At the May 2010 VA examination, the Veteran reported bilateral hearing loss which was worse in the left ear, along with tinnitus in the left ear. (See VA Exam, received 05/13/2010, p. 1.) He had served on active duty in Iraq with noise exposure to exposure tanks, diesels, planes, daily mortar rounds and IED blasts. In his civilian work he had occupational noise exposure to jets while working at Fed Ex and Northwest Airlines, as well as exposure to impact wrenches during his National Guard service. Audiometric testing showed pure tone thresholds in the left ear of 20, 25, 40, 60, and 60 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a pure tone average of 46.25 decibels. The examiner diagnosed hearing acuity within normal limits in the left ear through 1000 Hertz, sloping to moderately severe notched high frequency sensorineural hearing loss beyond that. A VA examination in May 2010 yielded audiometric test results that were too inconsistent to record. (See VA Exam, received 05/09/2016, p. 2.) Specifically, the examiner stated that there was a lack of agreement between Pure Tone Averages and Speech Reception Thresholds, with a 20 to 30 decibel variability between ascending and descending threshold searches. The Veteran reported that he experiences near constant, bilateral tinnitus. (p. 5.) After considering all of the evidence of record, to include that set forth above, the Board finds that there is no basis for an award of a compensable disability rating for left ear hearing loss. Specifically, the audiometric results from May 2010 of pure tone average of 46.25 decibels is the equivalent of a Roman Numeral II on Table VIA which, when combined with the Roman Numeral I assigned for the nonservice-connected right ear, yields a 0 percent (noncompensable) disability rating on Table VII. 38 C.F.R. § 4.85. The Board acknowledges that the most recent VA examination in May 2016 did not yield results which could be verified and therefore it is not clear whether the Veteran's hearing acuity in his left ear might be worse than at the last testing with verifiable results. However, it is not VA's obligation to produce evidence with respect to the Veteran's claim; rather, the Veteran has the burden to provide evidence to support the benefits sought on appeal. Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). No such evidence has been provided and the Board finds no grounds for a grant of a compensable disability rating for left ear hearing loss. Neurocognitive and Anxiety Disorders The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), warrants a 30 percent rating. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, warrants a 50 percent rating. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, warrants a 70 percent rating. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, warrants a 100 percent rating. 38 C.F.R. § 4.130. The Veteran was initially assigned a disability rating of 30 percent for his mental health disability prior to January 12, 2017, and was assigned a rating of 70 percent thereafter. Both rating periods are on appeal here. A disability rating in excess of 30 percent would require a disability picture showing occupational and social impairment of reduced reliability and productivity (50 percent); deficiencies in most areas (70 percent) or total occupational and social impairment (100 percent). At the June 2010 VA examination, the Veteran reported that he had good relationships with his wife and children and that his family kept him going. (See VA Exam, received 06/16/2010, p. 3.) He had hobbies such as working on cars or working in the yard, enjoyed fishing with his brother and traveling with his wife, but didn't enjoy being around a lot of people. He did not have suicidal ideation or violent outbursts and he was taking his medication of depression and nightmares. He denied panic attacks, flashbacks, and anger problems, but did report sleep disturbances and a sense of constantly being on guard. The examiner diagnosed adjustment disorder with depression and anxiety and noted that this results in signs and symptoms which were transient or mild and caused decreased work efficiency or the ability to perform tasks only during periods of significant stress. A Global Assessment of Functioning (GAF) score of 61 was assigned. The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM)-5 no longer utilizes GAF scores. However, DSM-5 is applicable for cases certified to the Board on or after August 4, 2014. This case was certified to the Board prior to that time. Consequently, DSM-IV is applicable. A GAF of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social occupational or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well with some meaningful interpersonal relationships. A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.) American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (Fourth Edition); see 38 C.F.R. § 4.130 (2014). At the February 2011 VA examination the Veteran reported crying spells two to three times per month but denied having any suicidal thoughts. (See VA Exam, received 02/16/2011, p. 3.) He had difficulty sleeping and was jittery in the morning, with reduced energy but good motivation. His marriage was stable and he had a good relationship with his family and with friends from the military. He had good attendance at work, but stated his relationships with coworkers were distant and he tended to argue with his bosses. The examiner described the Veteran's disability picture as one of occasional decreased work efficiency with intermittent periods of inability to perform occupational tasks but generally satisfactory functioning. A June 2012 submission from the Vet Center noted the Veteran's history of treatment for mental health issues due to combat trauma in Iraq. (See Third Party Correspondence, received 06/18/2012, p. 1.) He was seen for symptoms such as family and social impairment, anger and irritability, sleep disturbance, hypervigilance, and behaviors of avoidance and isolation. At the Board hearing in June 2015, the Veteran testified that he had a tendency to "go off on the deep end sometimes" and become irritable with people. (See Hearing Testimony, received 06/18/2015, p. 3.) He had difficulty in crowds and tended to stay at home where things were quiet. He constantly checked his locks and his windows and his wife preferred that he keep his guns locked in the safe. He had difficulty sleeping tended to wander in the night. A case assessment conducted in November 2015 for SSA noted that the Veteran had a psychiatric disorder which resulted in restriction of his activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and one or two episodes of decompensation of extended duration. (See Medical Treatment Records SSA, received 11/02/2016, p. 9.) The evaluator stated that the Veteran would be able to complete tasks at an acceptable pace but that his social avoidance, paranoid tendencies and infrequent episodes of irritability would occasionally interfere with his ability for appropriate interaction with supervisors, coworkers or the public. (pp. 15-16.) In a November 2016 submission, the Vet Center highlighted some aspects of the Veteran's mental health issues in his treatment records. (See Correspondence, received 11/04/2016, p. 1.) The records noted no indication of delusions, illusion, or hallucinations, although the Veteran did report that his mind sometimes played tricks on him. He was not psychotic and did not show an evidence of suicidality or homicidality. His judgment, thinking, and social functioning were all intact. He reported having a fear of snapping and hurting other people and a sense of frustration with loss of memory. A January 2017 DBQ discussed the symptoms related to the Veteran's mental health disability, as well as the effects of his traumatic brain injury (TBI). (See C&P Exam, received 01/16/2017, pp. 1-3.) The Veteran's symptoms were listed as depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty understanding complex commands, impaired judgment, disturbances motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. A second DBQ completed in January 2017 specifically dealt with all of the ramifications of the Veteran's TBI. (See C&P Exam, received 01/20/2017, p. 1.) The Veteran was noted to have some memory loss, but his judgment was normal, his social interaction was routinely appropriate, he was always oriented, his motor activity and visual spatial orientation were always normal, and he was able to communicate effectively by spoken and written language. A May 2017 DBQ specifically related to the Veteran's mental health disability described the Veteran's symptoms as productive of decreased work efficiency with intermittent periods of inability to perform occupational tasks. (See C&P Exam, received 05/02/2017, p. 3.) Specific symptoms included depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. In a September 2017 VA examination, the examiner listed a new diagnosis of somatic symptoms disorder with predominant pain which was persistent and severe, which the examiner stated was related to his military service and to injuries sustained therein. (See C&P Exam, received 09/13/2017, p. 1.) This was in addition to his other diagnosis of adjustment disorder with mixed anxiety and depressed mood. At that time, it was the VA examiner's opinion that the Veteran's mental health disabilities were productive of total occupational and social impairment. Symptoms were listed as depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances such as work or a work-like setting. After reviewing all of the evidence of record, to include that set forth above, the Board finds that staged ratings are still appropriate for the Veteran's neurocognitive and anxiety disorders, but that the evidence merits and adjustment in the assigned ratings and their effective dates. Specifically, the Veteran's mental health disability picture prior to November 17, 2015, is not consistent with the rating criteria for a disability rating any higher than the 30 percent assigned. The VA examinations and treatment records show that the Veteran was engaged in hobbies and had good relationships with his family members and friends. Although he had difficulty sleeping, he was still able to attend work regularly and was not reporting anything more than intermittent periods of decreased work efficiency. Reduced reliability and productivity at the work place or in his social relationships was not demonstrated. 38 C.F.R. § 4.130. Moreover, the GAF scores shown, while not dispositive, are reflective of mild symptoms. At the November 17, 2015 assessment for SSA, however, the Veteran demonstrated a worsening of his disability picture. Specifically, the Veteran had restrictions in his ability to perform the activities of daily living, had moderate difficulties with social functioning, and moderate difficulties with maintaining a persistent working pace. The evaluator stated that the Veteran would have difficulty appropriately interacting with people, particularly in a work setting. This is the equivalent of a disability picture of reduced reliability and productivity, particularly where the Veteran had some impairment of memory and completing tasks and difficulty maintaining effective relationships with others. As a result, the Board finds that entitlement to a 50 percent disability rating as of November 17, 2015 is shown. 38 C.F.R. § 4.130. The evidence also shows another worsening of the Veteran's disability picture at the January 12, 2017 VA examination, specifically to the level of deficiencies in most areas. The Veteran had memory loss and mood impairments, near-continuous depression, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. All of this is consistent with a 70 percent disability rating. 38 C.F.R. § 4.130. The September 2017 VA examination showed still further deterioration of the Veteran's disability picture. Specifically, the inclusion of the diagnosis of somatic symptoms disorder with persistent and severe pain showed additional mental health impairment. The VA examiner at the time indicated that the Veteran's disabilities were productive of total social and occupational impairment. As such, a 100 percent disability rating is warranted as of September 13, 2017. 38 C.F.R. § 4.130. Lumbar Spine Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula). The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a, Note (2). The Veteran's low back disability was initially rated as 10 percent disabling prior to June 8, 2016, and 20 percent disabling thereafter. Both rating periods are on appeal here. Entitlement to a disability rating greater than 10 percent would require evidence of limitation of motion to between 30 and 60 degrees of forward flexion or combined range of motion less than 120 degrees, or abnormal gait or spinal contour as a result of muscle spasm or guarding. A rating in excess of 20 percent would require evidence of limitation of motion to less than 30 degrees of forward flexion or ankylosis. Ankylosis has not been shown in this instance and will not be discussed further. In addition, the record does not show that the Veteran has ever had incapacitating episodes. Thus, the Board will concentrate as to whether the record demonstrates that the other criteria have been met or closely approximated. At the June 2010 VA examination, the Veteran reported having flare-ups twice a week, which lasted for about a day at a time. (See VA Exam, received 06/05/2010, p. 2.) He was limited in his ability to walk more than 15 minutes at a time and could not perform any heavy lifting. He had not had any incapacitating episodes in the previous 12 months, although his back pain had negatively impacted his ability to work. Range of motion testing showed forward flexion to 90 degrees, extension to 30 degrees, side bending to 30 degrees bilaterally and rotation to 30 degrees bilaterally, all with pain at the end points. There was X-ray evidence of mild spondylosis. An MRI in August 2010 showed degenerative disc disease and spondylosis without evidence of stenosis. (See Medical Treatment Records, received 11/05/2014, p. 189.) At the June 2015 hearing, the Veteran testified that he suffered from recurring muscle spasms for which he took muscle relaxers. (See Hearing Testimony, received 06/18/2015, p. 14-15.) He said it was difficult for him to bend. At a residual functional capacity evaluation conducted for SSA in November 2015, the provider noted that the Veteran's medical records did not show any significant abnormal ranges of motion. (See Medical Treatment Records SSA, received 11/02/2016, p. 13.) He was able to untie his shoes, removes his socks, and put them back on during the examination without any difficulty. He was able to lift 10 pounds while seated. His gait was normal. He used a brace on his knee and walked with a cane, but there was no evidence of any lower extremity weakness or significant balance issues which would require those assistive devices. The examiner did note that the Veteran had limitations with walking, squatting, bending, lifting, standing, reaching, sitting, and climbing stairs. An orthopedic DBQ completed in June 2016 noted the Veteran's complaints of pain and stiffness when he lay down or bent down. (See VA Exam, received 06/08/2016, p. 45-47.) He could not pick anything up and had difficulty sleeping as a result. His symptoms had begun in Iraq and worsened over time. Range of motion testing showed flexion to 50 degrees, extension to 15 degrees, side bending to 15 degrees bilaterally, and rotation to 15 degrees bilaterally. With repetitive motion, each measurement showed a reduction of about 5 degrees. During flare ups, flexion was estimated to be to 40 degrees, with all remaining measurements to 10 degrees. The Veteran had muscle spasms that did not result in any alteration in his gait or spinal contours. After considering all of the evidence of record, to include that discussed above, the Board finds that there is no basis for an increase in the currently assigned staged ratings for lumbar spine disability. The Veteran's range of motion prior to June 2016 was not shown to be less than 60 degrees of flexion and less than 120 degrees of combined range of motion, nor was he shown to have abnormal gait or spinal contour as a result of muscle spasm or guarding. Therefore, a disability rating in excess of 10 percent was not warranted. As of June 2016, the Veteran was shown to have flexion restricted to 45 degrees with pain, well in excess of the less than 30 degrees which would have been required for a rating higher than 20 percent. This is so even when considering additional functional limitation with repetition or on flare-up. Indeed, specific range of motion findings were estimated for those situations, as described above, and the measurements are not commensurate with, or most nearly approximate, the next-higher criteria. Accordingly, the claim for an increase is denied. Migraine Headaches Diagnostic Code 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. The Veteran's migraine headaches were initially rated as 10 percent disabling prior to April 30, 2012, and as 30 percent thereafter. Both rating periods are on appeal here. In order for a disability rating higher than 10 percent to be warranted, the evidence would need to show characteristic prostrating attacks occurring about once a month; a still higher rating would require more frequent and prolonged completely prostrating attacks which produce economic hardship. The May 2010 VA examination noted that the Veteran had severe headaches about twice per week with associated nausea and vomiting and intermittent photophobia. (See VA Exam, received 05/13/2010, p. 7.) The examiner noted that occasionally the Veteran was able to work through his headaches and sometimes he was not. (p. 13.) A treatment note from VA in November 2011 stated that the Veteran had excruciating migraines once or twice per week, which required that he lay down in a dark, quiet place. (See CAPRI, received 11/05/2014, p. 350.) The rest of the time he had an annoying lower level headache. At the April 2012 VA examination, the Veteran reported that during headaches he was sensitive to light and noise sensitive. (See VA Exam, received 04/30/2012, p. 36.) He had pulsations with onset and the headaches lasted for a day or two, causing left eye closure and crusting. These occurred more frequently than once per month and were prostrating in nature. His non-migraine headaches were also prostrating, occurred more than once per month, and were frequent and prolonged. (p. 40.) The Veteran was working full-time but needed to use leave for his headaches. After reviewing the evidence of record, to include that set forth above, the Board finds that a disability rating of 30 percent is warranted as of November 1, 2011, when the VA treatment note showed that he was experiencing prostrating attacks more than once a week requiring him to lay down in a dark, quiet place. Prior to that date, the evidence had not indicated that the Veteran's headaches were prostrating in nature. As of April 30, 2012, the evidence showed that the Veteran's headaches were frequent and prolonged and were productive of severe economic inadaptability, specifically, as stated in the VA examination report, the need to use leave for his headaches. This evidence supports an award of 50 percent for headaches as of the date of the examination. 38 C.F.R. § 4.124a. The schedular rating criteria for migraines include a maximum 50 percent disability rating with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. It is that standard which the Board finds has been met as of April 30, 2012. In accordance with the standard of Thun v. Peake, 22 Vet. App. 111 (2008), the Board has considered whether the remainder of the evidence shows an exceptional disability picture, wherein the Veteran's disability picture is not adequately described by the rating criteria. The Board does not find any evidence of an exceptional disability picture. The description in the August 2014 DBQ, the June 2015 Board hearing, and the January 2010 DBQ all show very frequent prostrating attacks which required the Veteran to lay down in a dark and quiet place. (See DBQ, received 082/25/2014, pp. 1-2; Hearing Testimony, received 06/18/2015, p. 8; C&P Exam, received 01/20/2017, p. 1.) These attacks lasted at least a day at a time and interfered with his ability to work, resulting in economic hardship. As such, entitlement to consideration for an extraschedular disability rating has not been shown. Thun; 38 C.F.R. § 3.321 (b)(1). ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for a right elbow disability, to include cubital tunnel syndrome and medial and lateral epicondylitis, is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to an initial compensable disability rating for left ear hearing loss disability is denied. Entitlement to an initial disability rating in excess of 30 percent for neurocognitive and anxiety disorders prior to November 17, 2015 is denied. Entitlement to a disability rating of 50 percent for neurocognitive and anxiety disorders from November 17, 2015 to January 12, 2017 is granted. Entitlement to a disability rating of 70 percent for neurocognitive and anxiety disorders from January 12, 2017 to September 13, 2017 is granted. Entitlement to a disability rating of 100 percent for neurocognitive and anxiety disorders from September 13, 2017 is granted. Entitlement to an initial disability rating in excess of 10 percent for lumbar spondylosis prior to June 8, 2016, and in excess of 20 percent thereafter is denied. Entitlement to an initial disability rating in excess of 10 percent for migraine headaches prior to November 1, 2011, is denied. Entitlement to a disability rating of 30 percent for migraine headaches as of November 1, 2011, is granted. Entitlement to a disability rating of 50 percent for migraine headaches as of April 30, 2012, is granted. ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs