Citation Nr: 1756594 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 05-17 682A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hearing loss, to include as secondary to service-connected residuals of a fractured nose. 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected residuals of a fractured nose. 3. Entitlement to service connection for an eye disorder, to include as secondary to service-connected residuals of a fractured nose. 4. Entitlement to a rating in excess of 50 percent for a depressive disorder with anxiety prior to September 24, 2012, and in excess of 70 percent thereafter. 5. Entitlement to a rating in excess of 30 percent for headaches. 6. Entitlement to a rating in excess of 10 percent for temporomandibular joint articulation prior to January 8, 2009 and in excess of 20 percent thereafter. 7. Entitlement to a compensable rating for the residuals of a fractured nose with dorsal deviation. REPRESENTATION Veteran represented by: Jeffrey T. McGuire, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 1987. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2009, the Veteran testified at a personal hearing before a Veterans Law Judge. A copy of the transcript of that hearing is of record. In May 2017, the Veteran was advised that the VLJ who conducted the January 2009 hearing was no longer employed at the Board. The Veteran was given 30 days to request an additional hearing. No response was received from the Veteran within the allotted timeframe. Therefore, the claims are ripe for adjudication. These claims were previously before the Board in March 2009, at which time they were remanded for additional development. A December 2015 rating decision increased the Veteran's ratings for depressive disorder and TMJ. An October 2016 rating decision granted the Veteran earlier effective dates for his service-connected headaches and depressive disorder and increased his ratings for depressive disorder. The rating decision also granted service connection for traumatic brain injury (TBI), but as described in detail below, this disorder will be rated together with his depressive disorder. However, as these grants do not represent a total grant of benefits sought, the Veteran's claims remain pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability for VA compensation purposes. 2. The Veteran does not have a low back disorder that was incurred as a result of service or is secondary to a service-connected disorder. 3. The Veteran does not have an eye disorder. 4. For the period prior to September 24, 2012, the Veteran's depressive disorder symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity. Symptoms causing occupational and social impairment with deficiencies in most areas are not demonstrated. 5. From September 24, 2012, the Veteran's depressive disorder with TBI more nearly approximates occupational and social impairment with deficiencies in most areas. Total occupational and social impairment is not demonstrated. 6. The Veteran's migraine headaches did not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 7. Prior to January 8, 2009, the Veteran's TMJ disease was manifested by greater than 31 mm inter-incisal range and 4mm lateral excursion. 8. From January 8, 2009, the Veteran's TMJ was manifested by inter-incisal range between 21-30 mm. 9. The Veteran's deviated nasal septum does not result in 50 percent obstruction on both sides or complete obstruction of one side. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385 (2017). 2. The criteria for establishing service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for establishing service connection for an eye disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. Prior to September 24, 2012, the criteria for a rating in excess of 50 percent for depressive disorder have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). 5. From September 24, 2012, the criteria for a rating in excess of 70 percent for the depressive disorder with TBI have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). 6. The criteria for a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 7. The criteria for a rating in excess of 10 percent for TMJ disease prior to January 8, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9905 (2017). 8. The criteria for a rating in excess of 20 percent for TMJ disease from January 8, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9905 (2017). 9. The criteria for a compensable rating for deviated nasal septum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 4.1-14, 4.31, 4.71a, Diagnostic Code 6205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The Veteran was provided with the relevant notice and information. He has not alleged any notice deficiency during the adjudication of that claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA's duty to assist under the VCAA includes helping claimants to obtain pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159 (c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For his service connection claims, the Veteran was afforded adequate VA examinations that considered his medical history, his treatment records, a physical examination of the Veteran, and his lay statements and provided opinions supported by adequate rationales. For his increased rating claims, the Veteran was afforded adequate VA examinations that considered his medical history, his treatment records, a physical examination of the Veteran, and a review of his symptoms in accordance with the schedular criteria. Finally, the Board finds that the AOJ sufficiently complied with the remand directives of the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Law and analysis - service connection claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (a). VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing loss Certain chronic diseases, including sensorineural hearing loss (an organic disease of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). The threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley at 157; 38 C.F.R. § 3.385. The Board notes that in the December 2015 rating decision, the RO granted service connection for a tinnitus and an earache of the left ear. However, as the Veteran's claim also included a claim of service connection for hearing loss, the Board will presently adjudicate that issue. At a September 1998 VA examination, an audiogram showed puretone thresholds as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 10 5 5 10 Left 10 10 5 15 20 The examiner indicated that the Veteran's hearing with within normal limits and speech discrimination scores of 96 percent bilaterally, were good. A July 2003 treatment record showed the ear canals to be clear and an audiometric evaluation showed essentially normal hearing bilaterally. Tympanograms were also normal. A May 2006 VA examination noted no hearing loss. Similarly, at a March 2011 VA examination, an audiogram showed puretone thresholds as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 0 0 0 10 15 Left 5 5 0 10 20 Speech discrimination was said to be 100 percent in both ears. The examiner opined that the Veteran had normal hearing in both ears and therefore, hearing loss could not be ascribed to trauma in service. The evidence of record does not demonstrate that the Veteran has a hearing loss disability for VA purposes on which a claim of service connection can be predicated. Accordingly, service connection for bilateral hearing loss is therefore denied at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.385; Brammer v. Derwinski, 3 Vet. App. 223 (1995). Low back disorder The Veteran sustained an injury to his nose in service. Service treatment records are negative for any complaints, diagnosis, or treatment for a low back disorder. The Veteran underwent a VA examination in May 2006. The Veteran complained of intermittent lumbar spine with stiffness and weakness. The examiner performed a comprehensive examination and concluded that it was a normal lumbar spine with no diagnosis of a disorder. At a March 2011 VA examination, the examiner diagnosed chronic lumbosacral strain. The examiner opined that it was "unlikely that his back problem was related to his neck problem. There does not appear to be any claim that his back was injured at the time of his facial injury. Cervical strain in and of itself would not [] lumbar issues." [sic]. The Board finds that service connection for a lumbar spine disorder is not warranted. The VA examiner found no etiological relationship between a lumbar spine disorder and the Veteran's in-service injury. The Board finds the Veteran to be competent and credible to provide evidence of his symptoms, but although the Veteran has stated that his in-service injury caused his lumbar spine disorder, the Board finds the reasoned expert opinion of the VA examiner to be more probative as to the etiology of his disorder. Therefore, the Veteran's claim of service connection for a lumbar spine disorder is denied. Eye disorder Service treatment records are negative for any complaints, diagnosis, or treatment for an eye disorder. In May 2006, the Veteran underwent a VA examination. He reported dull pain in the left eye for the prior 15 years and has worsened in the prior 5 years. The VA examiner stated that he could not find a clinical cause for the pain and that his eye appeared quiet and healthy. The examiner suggested that he see an ENT and rule out the possibility of sinus problems. At a March 2011 VA examination, the Veteran reported pain in his left eye and difficulty focusing and with exposure to light. The examiner opined that while he was unsure of the cause of the pain surrounding the Veteran's left orbital bone and behind the eye, it was unlikely related to his nasal injury in service as it began 13 years after his in-service injury. A September 2012 VA examination report showed the examiner found that the Veteran had left eye pain that was more likely caused by his service-connected TMJ. In the December 2015 rating decision, the RO stated that left ocular discomfort was added to the overall diagnosis for TMJ. Although the Veteran has asserted that he has pain around the left eye, no eye disorder has been found. To the extent that it is related to his TMJ, the RO has added it in consideration of a rating for that disorder. However, pain alone is not a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Pain may be a disability to the extent that there is a functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In this case, no additional functional loss or disorder of the eye has been identified and therefore, service connection for an eye disorder is denied. Law and analysis - increased ratings claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Depressive disorder with anxiety The Veteran's major depressive disorder has been assigned a 50 percent rating prior to September 24, 2012, and a 70 percent rating thereafter. 38 C.F.R. § 4.130, Diagnostic Code 9434. Almost all mental health disorders, including depression, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130, Diagnostic Code 9434. The Veteran contends his disorder is more severe than reflected in the current ratings. Pursuant to the General Rating Formula, a 50 percent disability rating is warranted for 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. A 70 percent disability rating is warranted for 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a) (2017). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2017). The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Id. at 443. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. A GAF score 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). See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). The Board also notes that during the course of the appeal, a new edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) was published and it contains no GAF score information. However, as the Veteran had examinations prior to this change and was provided with GAF scores, the Board will evaluate them as one piece of information in determining the level of severity of the Veteran's disorder. At a VA examination in December 1998, the Veteran reported complaints of irritability and difficulty sleeping due to headaches, ear pain, or other disorders. On mental status examination, the Veteran was cooperative but with an anxious affect and nervous mood. His speech was noted to be rapid, but not pressured and his thought processes were goal-directed, although occasionally circumstantial. His memory was intact, insight was fair, and judgment was good. The examiner noted that the symptoms did not appear to rise to the level of a clinical diagnosis. A June 2001 VA examination report provided an assessment of anxiety disorder with depressive features. The examiner provided a GAF score of 45. Symptoms included a bad temper due to constant pain, nightmares, difficulty sleeping, anxiety, depression, and an inability to concentrate at work. A mental status examination noted the Veteran was casually dressed and coherent. There was no evidence of hallucinations or persecutions. The Veteran was tense and anxious, with a moderately depressed affect. He had memory lapses and difficulty with concentration, but his insight and judgment were deemed to be fair. A VA examination dated in July 2002 noted a diagnosis of depression with anxiety and a GAF score of 60. The Veteran reported symptoms of irritability, moodiness, frustration, severe mood swings, and depression. He also endorsed experiencing nervousness, but denied panic symptoms. While the Veteran stated that he had a tendency to withdraw from others, he had close contact with his family and had been married for 5 years. A mental status examination noted he was appropriately dressed and appeared oriented, with no evidence of delusions or hallucinations, an adequate memory, and general reasoning behavior and social judgment appeared to be within normal limits. The examiner noted the Veteran's overall affect appeared to be depressed with some accompanying anxiety. The Veteran was afforded a VA examination in May 2006. He reported mood swings, irritability, and fits of anger. He had trouble sleeping and depression, precluding him from engaging in pleasurable activities. The Veteran reported poor memory, lack of energy, lowered libido, and sadness. The Veteran reported maintaining employment but that his disorders interfere with his ability to work. Socially, he was able to interact with others adequately. There was no impairment of thought process or communication and he was able to perform activities of daily living, although he occasionally forgets to shower and had problems concentrating and had poor attention. He had no delusions or hallucinations and was fully oriented. The examiner assigned a GAF score of 58, indicative of moderately severe symptomatology and a fair prognosis. At an April 2008 VA examination, the Veteran reported significant trouble sleeping, irritability, moodiness, loss of motivation, and forgetfulness due to his depression. He stated that he had been married for 10 years and "gets along okay with his wife" but, at times, finds it hard to be around others. During his bouts of depression, he feels hopeless and withdrawn and does not participate in activities and will occasionally skip grooming habits. He has problems with concentrating and gets angry due to the pain, but denied social ideation. The Veteran denied problems at work or with co-workers but hides the occasional panic attack and anxiety. The examiner diagnosed major depressive disorder and assigned a GAF score of 55, indicative of moderately severe symptomatology. A mental disorders VA examination was conducted in September 2012. The Veteran reported symptoms of depressed mood daily, anxiety, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, impaired judgment, disturbances or motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, obsessional rituals which interfere with routine activities, spatial disorientation, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner opined that the Veteran has major depressive disorder, chronic, moderate to severe. His depression and other service connected disorder have greatly limited his occupations and psychosocial functioning since age 19. He had relied on his wife and supportive supervisors, but has trouble concentrating, remembering instructions, multi-tasking, and understanding others. The examiner concluded that the Veteran had significant psychosocial and occupational impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and/or mood. The September 2012 VA examiner also found the Veteran had been diagnosed with a traumatic brain injury. The examiner noted a 2005 neurology report which noted findings of a mild to moderate executive and memory impairment, including trouble with organization, shifting tasks, and learning new information. The examiner concluded that it was not possible to differentiate what symptoms are attributable to traumatic brain injury versus major depressive disorder. The examiner stated that the symptoms of depression overlap in many respects with those of traumatic brain injury and it would be difficulty, in fact, speculative to disentangle the effect of the two conditions. The examiner further noted that depression like traumatic brain injury can affect concentration, short-term memory, aspects of executive function, motivation, and initiative. At the April 2016 VA examination, the examiner diagnosed traumatic brain injury. The examiner opined that his diagnosis of traumatic brain injury is at least as likely as not (50 percent or greater probability) incurred in or caused by the event of the bucket fracturing your nose during military service. On examination, there was objective evidence of a mild memory loss; judgment, social interaction, and motor activity were noted to be normal. The examiner noted occasional disorientation, visual spatial orientation impairment with difficulty following directions. The examiner noted subjective symptoms of headaches. The examiner noted he had one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, to include irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, belligerence, apathy, moodiness, lack of cooperation, and inflexibility. His comprehension and expression of written language was occasionally impaired. The examiner noted that residuals associated with traumatic brain injury would impact the Veteran's ability to work. The examiner provided a listing of his emotional/behavioral signs and symptoms which represent residuals of traumatic brain injury, to include: difficulty organizing daily tasks; blurred vision or eyes tire easily; headaches or ringing of ears; feeling sad, anxious, or listless; easily irritated or angered; feeling tired all the time; feeling lightheaded or dizzy; trouble with memory, attention, or concentration; more sensitive to sounds, lights or distractions; impaired decision making or problem solving; slowed thinking, moving, speaking or reading; easily confused; feeling easily overwhelmed; and decrease in sexual interest. After a review of the evidence, the Board finds that the criteria for a rating in excess of 50 percent for depression prior to September 24, 2012, are not met. The evidence showed disturbances of motivation and mood, depression, chronic sleep impairment, and anxiety, difficulty concentrating, and memory impairment. The Veteran reported a good relationship with his wife and denied that his disorder caused problems at work. From September 24, 2012, the Board finds that that the Veteran's depression symptoms do not warrant a 100 percent rating. Although the records reflect an increase in the severity of his symptoms, at no point does the evidence show total social and occupational impairment, as the Veteran remained married and employed. The Board has considered whether the Veteran would be entitled to a higher rating under the criteria for a traumatic brain injury. However, an analysis of the symptoms in accordance with the criteria shows the General Rating Formula for Mental Disorders to offer the Veteran a higher rating. He is not entitled to ratings under multiple diagnostic codes for the same symptoms, as this would constitute pyramiding. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of increased ratings for his depressive disorder with TBI. Headaches The Veteran's migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Rating Schedule does not define "prostrating." A lay definition of the term is that it means "utter physical exhaustion or helplessness." See Webster's New World Dictionary of American English, 1080 (3rd ed. 1986). A medical definition of this term is that it means "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994). Treatment records show the Veteran complained of daily headaches. A September 1998 VA examination noted that the Veteran reported complaints of daily headaches with nausea, photophobia, and scotomata. He took aspirin for relief. A May 2001 VA examination report showed the Veteran complained of daily headaches with photophobia. At a May 2006 VA examination, the Veteran reported headaches with a pain level of 3-4 on a scale of 10. He denied weakness, fatigue, and functional loss during a headache. An April 2008 VA examination report showed the Veteran reported chronic daily headaches. The headaches were associated with photosensitivity and occasional nausea, but no vomiting. The examiner diagnosed non-prostrating post traumatic headaches. The Veteran was afforded a VA examination in March 2011. He reported daily headaches. He stated that he medicated for the headaches but was able to work through them. They have a throbbing quality associated with photophobia and intermittent nausea. The examiner diagnosed prostrating migraine headaches. In an August 2012 VA examination report, the Veteran reported headaches every one to two days. He described the pain as constant head pain of a pulsating and throbbing quality. He also had symptoms of nausea, vomiting, sensitivity to light and sound, changes in vision, and some sensory changes. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran took medication and was able to work with these headaches. At a VA headaches examination in April 2016, the Veteran reported headaches with pain and sensitivity to light and sound. The examiner opined that the Veteran's headaches are, at times, prostrating and impact his ability to work in that it causes him to stop his activity and decrease external stimuli. In light of the above, the Board finds that a rating in excess of 30 percent is not warranted. The Veteran is competent to report symptoms such as headaches and sensitivity to light and sound, and the Board finds his statements credible. However, neither the treatment records nor the Veteran's lay statements show that his headaches were productive of severe economic inadaptability, as required for a rating of 50 percent. Therefore, the criteria for a rating in excess of 30 percent have not been met and the Veteran's claim is denied. Temporomandibular joint articulation (TMJ) The Veteran contends that his TMJ warrants ratings in excess of those assigned. He is currently in receipt of a 10 percent rating prior to January 8, 2009 and a 20 percent rating thereafter. TMJ is rated under Diagnostic Code 9905. Under Diagnostic Code 9905, for limited motion of temporomandibular articulation, a 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 millimeters (mm) or the inter-incisal range is limited to 31 to 40 mm; a 20 percent rating is applicable when the inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm; and a 40 percent rating is assigned when the range is limited to 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905, Note. At an April 2008 VA examination, the examiner noted pain with TMJ. There was no functional impairment, mastication, or phonation. His maximum opening was 33 mm, left opening was 12 mm, and right opening was 12 mm. The examiner concluded that the impression was of advancing dental pathology which has gone unattended, coupled with continuing bruxism, clenching, and THJ tenderness. A January 2009 private treatment record shows the Veteran had a clicking sound in his jaw since service. He reported stiffness and pain and an inability to open his mouth widely without pain and locking. A physical examination showed clicking and grinding of his teeth, with a 30 percent loss of range of motion. The physician specifically found a maximum opening of 29 mm The Veteran underwent a VA examination in March 2011. The examiner noted daily pain in the left TMJ area, extending medially to the left eye and attendant structures. There was no functional impairment to mastication, or phonation. His maximum opening was 29mm, 25 mm, and 25 mm, all with pain. The maximum left opening was 3 mm, and maximum right opening was 5 mm. The examiner concluded that the impression was of advancing dental pathology which has gone unattended, coupled with continuing bruxism, clenching, and THJ tenderness. The examiner also noted that the Veteran's left ocular discomfort was likely related to his TMJ. A review of the evidence shows that prior to January 8, 2009, the Veteran had a maximum opening of 33 mm. From that date, the evidence shows openings of 25 mm and 29 mm. Therefore, ratings in excess of the currently assigned 10 and 20 percent ratings are not warranted. A Note under Diagnostic Code 9905 makes clear that "Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion." The Board also notes that a veteran is not entitled to separate 10 percent ratings for disability in the temporomandibular joint on each side of the jaw. Vilfranc v. McDonald, 28 Vet. App. 357 (2017). The Board has also considered whether a higher disability rating is warranted under other possibly applicable diagnostic code provisions during either period on appeal. VA examinations, however, did not include findings supportive of any such rating. The Veteran did not exhibit any nonunion of the mandible at any time period on appeal; a higher disability rating pursuant to Diagnostic Code 9903 and 9904 is not warranted. The Veteran also did not have ramus, loss of condyloid process, or loss of hard palate. See 38 C.F.R. § 4.150, Diagnostic Codes, 9907, 9909, 9912. Additionally, the Veteran has never been diagnosed with, nor does he contend, that his jaw disability manifests in chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, any loss of the mandible, any loss of the ramus, any loss of the condyloid, or any loss or malunion of the maxilla. Therefore, the Veteran is not entitled to a higher rating under Diagnostic Codes 9900-9902, 9906, 9908, 9911, and 9914-9916. 38 C.F.R. § 4.150. The potential disabling effects of pain have also been considered in evaluating the Veteran's service-connected TMJ. Although he has complained of difficulty chewing, as well as pain, the Board finds that this is already contemplated in the assigned ratings. There is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain. 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.59, 4.130. In short, there is no showing of additional limitation of functional such as to enable a finding that the Veteran's disability picture most nearly approximates higher disability ratings. Therefore, the Veteran's claim is denied. Residuals of a fractured nose with dorsal deviation The Veteran is service connected for residuals of a fractured nose with dorsal deviation. He asserts that the severity of this disability more nearly approximates a compensable rating. For the reasons that follow, the Board finds that a compensable rating is not warranted. Pursuant to Diagnostic Code 6502, a compensable 10 percent rating is warranted for 50 percent obstruction of the nasal passage on both side or complete obstruction of the nasal passage on a single side. VA examination dated in September 1997 showed complaint of sinus symptoms over the course of the past three to four years, complaints of nasal obstruction, left greater than right, some shortness of breath with exercise, and headaches with visual disturbances. An examination of the external nose showed slight asymmetry at the alar base, otherwise within normal limits. Vestibule was within normal limits. Septum was mildly deviated to the left. A May 1998 treatment note indicated that the Veteran sustained a nasal fracture with septum deviation causing severe cephalgia and respiratory obstruction. A July 2003 treatment record showed the Veteran had a history of a severe nasal injury associated with a nasal fracture which occurred when he was in the Navy in April of 1984. He had increasing difficulty with his nasal breathing. The Veteran also reported a history of sinus infections and a sensation of blockage in his ears particularly on the left side with some questionable change in hearing. A CT scan showed significant septal deviation. At a May 2006 VA examination, the Veteran was diagnosed with status post septoplasty from a status post trauma fracture to the nose. The examiner found no interference with breathing through the nose, purulent discharge, dyspnea, speech impediment, disease or injury affecting the soft palate, nasal regurgitation, speech impairment, chronic sinusitis, allergy attacks, and periods of incapacitation, rhinitis, or nasal polyps. The examiner stated that there was no nasal obstruction and no deviated nasal septum. At the April 2008 VA examination, the Veteran reported nasal congestion and interference with breathing through the nose on a daily basis. No other symptoms were noted. There was a deviated nasal septum accounted for unilaterally for approximately 50 to 60 percent. The examiner diagnosed septal deviation and nicotine dependency, which the examiner found to account for the Veteran's complaint of nasal congestion. The Veteran was afforded a VA examination in March 2011. He denied any interference with breathing through the nose, nasal discharge, speech impairment, sinus pain, or crusting. Upon physical examination, the examiner noted that there was no tenderness with palpation of the sinuses, and no deformity, tenderness, pain, or step-off with palpation of the nasal bridge. The septum was midline, nares were patent bilaterally, and there was no obstruction, polyps, lesions, or purulence. The examiner diagnosed a nasal fracture with subsequent deviated nasal septum which was reduced manually with the initial injury and subsequently with surgery in October 2003. The Veteran noticed improvement in his breathing since the surgery. At a September 2012 VA examination, the Veteran reported intermittent pain at the nasal bridge but denied issues with nasal bleeding or sense of smell. A physical examination showed the nares were patent bilaterally with no obstruction, polyps, lesions, or purulence. An external examination showed no deformity, tenderness, pain, or step-off. The examiner diagnosed a deviated nasal septum. After a review of the evidence, the Board finds the Veteran is not entitled to a compensable rating. The evidence of record has not revealed the presence of either a 50 percent obstruction of the nasal passage on both sides of a complete obstruction on one side. The Board has considered the Veteran's reports of congestion; however, in light of the VA examiners' findings of no obstruction, the Veteran's report of congestion cannot be considered to approximate complete obstruction of the nasal passage on a single side or 50 percent obstruction on both sides. In that regard, the evidence is not in equipoise and weighs against such a finding of fact; there is no doubt to be resolved. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.97. ORDER Service connection for hearing loss, to include as secondary to service-connected residuals of a fractured nose is denied. Service connection for a back disorder, to include as secondary to service-connected residuals of a fractured nose is denied. Service connection for an eye disorder, to include as secondary to service-connected residuals of a fractured nose is denied. A rating in excess of 50 percent for a depressive disorder with anxiety prior to September 24, 2012, and in excess of 70 percent thereafter is denied. A rating in excess of 30 percent for headaches is denied. A rating in excess of 10 percent for temporomandibular joint articulation prior to January 8, 2009 and in excess of 20 percent thereafter is denied. A compensable rating for the residuals of a fractured nose with dorsal deviation is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs