Citation Nr: 1805959	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  13-23 864	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Entitlement to service connection for a left eye disorder, including Adie's pupil.

2. Entitlement to service connection for a right ankle disorder.

3. Entitlement to service connection for a bilateral foot disorder.

4. Entitlement to service connection for a neck disorder.

5. Entitlement to service connection for bilateral hearing loss.

6. Entitlement to service connection for a right knee disorder.

7. Entitlement to a rating in excess of 10 percent for a low back disability.

8. Entitlement to an initial rating in excess of 10 percent prior to January 11, 2017, and a rating in excess of 40 percent effective from January 11, 2017, for traumatic brain injury (TBI) with residual photophobia, headaches, and poor concentration.

9. Entitlement to a compensable rating prior to November 2, 2016, and a rating in excess of 10 percent effective from November 2, 2016, for dilated pupil, right eye (Adie's syndrome).

10. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

D.M. Casula, Counsel


INTRODUCTION

The Veteran had active service from June 1986 to October 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for TBI with residual photophobia, headaches, and poor concentration, and assigned an initial 10 percent rating, effective October 21, 2009; denied service connection for Adie's pupil left eye, a right knee disorder, a right ankle disorder, and calluses of the bilateral feet (bilateral foot disorder); denied a rating in excess of 10 percent for low back pain, spondylosis of L5 (low back disability); and denied a compensable rating for dilated pupil, right eye (Adie syndrome).  This matter further comes before the Board from an October 2011 rating decision in which the RO denied service connection for cervical spine stenosis (claimed as neck condition) and for bilateral hearing loss.  This matter also comes before the Board from a June 2013 rating decision in which the RO denied entitlement to a TDIU rating.  In a February 2017 rating decision, the RO granted a 40 percent rating for TBI with residual photophobia, headaches, and poor concentration, effective from January 11, 2017.  The February 2017 rating decision also granted a 10 percent rating for dilated pupil, right eye, effective from November 2, 2016.

In May 2015, and again in February 2016, the Board remanded this matter for further development.

Finally, the record shows that after the RO issued a March 2016 rating decision to implement the Board's February 2016 decision awarding service connection for a depressive disorder, the Veteran filed a timely notice of disagreement (NOD) with the initial rating and effective date assigned by the March 2016 rating decision.  See March 2016 NOD.  The Veteran also filed a timely NOD as to the initial rating and effective date assigned by an April 2017 rating decision awarding service connection for residuals of a laceration to the back scalp.  See April 2017 NOD.  A review of the record does not show that the Veteran has been issued a statement of the case (SOC) as to any of those issues.  Ordinarily, the claim would be remanded for the issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, it appears the RO has acknowledged the Veteran's March 2016 and April 2017 NODs and additional action is pending.  See April 2016 and May 2017 notice letters to Veteran (acknowledging the receipt of his March 2016 NOD and April 2017 NOD, respectively).  Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized, and remand is not necessary at this time.


FINDINGS OF FACT

1. The preponderance of the competent evidence of record is against a finding that the Veteran has a left eye disorder, including Adie's pupil, which had an onset in service, or is otherwise related to service, or to a service-connected disability.  

2. The preponderance of the competent evidence of record is against a finding that the Veteran has a right ankle disorder that had an onset in service, or is otherwise related to service.

3. The preponderance of the competent evidence of record is against a finding that the Veteran has a bilateral foot disorder that had an onset in service, or is otherwise related to service.

4. The preponderance of the competent evidence of record is against a finding that the Veteran has a neck disorder that had an onset in service, within one year of separation from service, or is otherwise related to service.

5. The preponderance of the evidence of record indicates that the Veteran does not have bilateral hearing loss for VA disability purposes.

6. Prior to the promulgation of a decision on this appeal, the Veteran indicated in a statement dated in May 2016 that he wished to withdraw the appeal for service connection for a right knee disorder.

7. The Veteran's service-connected low back disability has been manifested by pain and stiffness, as well as pain at the end range of motion, but did not exhibit or more nearly approximately forward flexion to 60 degrees or less, or combined range of motion of the thoracolumbar spine greater than 120 degrees, or abnormal gait, or abnormal spinal contour, even when considering additional functional loss, nor has there been any objective evidence of related neurological abnormalities.

8. Prior to January 11, 2017, the Veteran's TBI with residual photophobia, headaches, and poor concentration, was manifested by no more than level 1 impairment in any of the facets of TBI related to cognitive impairment and subjective symptoms, with no evidence of impaired judgment, orientation, spatial orientation, communication, or consciousness.

9. Effective from January 11, 2017, the Veteran's TBI, has been manifested by no more than level 3 impairment in any of the facets of TBI related to cognitive impairment and subjective symptoms, with no evidence of impaired judgment, orientation, communication, or consciousness.

10. Prior to November 2, 2016, the Veteran's dilated pupil, right eye (Adie's syndrome) was manifested by symptoms of light sensitivity; there was no visual impairment or incapacitating episodes shown.

11. Effective from November 2, 2016, the Veteran's dilated pupil, right eye (Adie's syndrome) was manifested by was manifested by symptoms of light sensitivity; there was no visual impairment shown, nor did he have incapacitating episodes with a total duration of at least 2 weeks but less than 4 weeks in the past 12 months.

12. The most probative evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment.


CONCLUSIONS OF LAW

1. A left eye disorder, including Adie's pupil, was not incurred in or aggravated during active military service, and is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C. §§ 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017).  

2. A right ankle disorder was not incurred in or aggravated during active military service.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3. A bilateral foot disorder was not incurred in or aggravated during active military service.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

4. A neck disorder was not incurred in or aggravated during active military service.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

5. Bilateral hearing loss was not incurred in or aggravated by active service.  38 U.S.C.A. § 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).

6. The criteria for withdrawal of a substantive appeal by the Veteran, for the claim for service connection for a right knee disorder, have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202 , 20.204 (2017).

7. The criteria for a rating in excess of 10 percent for a low back disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2017).

8. The criteria for an initial rating in excess of 10 percent, prior to January 11, 2017, for TBI with residual photophobia, headaches, and poor concentration, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045 (DC) (2017).

9. The criteria for a 70 percent rating, effective from January 11, 2017, for TBI, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045 (DC) (2017).

10. The criteria for a compensable rating, prior to November 2, 2016, for dilated pupil, right eye (Adie's syndrome), is denied.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.179, Diagnostic Code 6009 (DC) (2017).

11. The criteria for a rating in excess of 10 percent, effective from November 2, 2016, for dilated pupil, right eye (Adie's syndrome) is denied.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.179, Diagnostic Code 6009 (DC) (2017).

12. The criteria for the assignment of a TDIU rating have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See, e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159.  For the issues decided in the instant document, VA provided adequate notice in letters sent to the Veteran in November 2009 and in August 2010.

The Board finds VA has satisfied its duty to assist the Veteran in the development of the claims.  VA has obtained all identified and available service and post-service treatment records for the Veteran, and VA examinations were conducted in December 2009, January 2010, July 2011, August 2012, October 2016, November 2016, and January 2017.  It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained, and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal.  Also, neither he nor his representative has raised any issues with the duty to notify or duty to assist.  Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).  The Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claims.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. Service Connection Claims

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  

In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C. §§ 1112 , 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  Id.  However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013).  Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  Kahana v. Shinseki, 24 Vet.App. 428 (2011). 

1. Left Eye Disorder

The Veteran contends he has a left eye disorder related to service.  

Service treatment records (STRs) show that the Veteran had a head injury in April 1989, after which he had anascoria and his pupils were sensitive to light.  A finding of Adie's pupil, right eye, was also made, but unrelated to the head trauma.  

Service connection has been granted, effective from November 1989, for dilated pupil right eye (Adie's syndrome).  

A VA examination in December 2009 noted possible Adie's of the left eye, as the eye had a sluggish response to light.  The examiner opined that it was very unlikely that the Veteran also suffered trauma in his left eye that resulted in Adie's pupil in the left eye, nothing that whether he had Adie's pupil of the left eye was in question, and that it was not likely that military service caused it.  The examiner indicated that it did not appear that the Veteran had pupil defects on examination, other than slow reaction to light in both eyes.

A VA examination in July 2011 noted sluggish reaction to light from both eyes, and possible Adie's pupil, left eye.

On a VA examination in August 2012, the examiner indicated there was no evidence of Adie's pupil in the left eye.  The examiner referred to the 2009 examination report, and opined it would be very unlikely that in service the Veteran also suffered trauma in his left eye that resulted in Adie's pupil in the left eye also.  The examiner noted that whether the Veteran had Adie's pupil was in question, and that it was possible that the military caused it, but not likely. 

On a VA examination in October 2016, the diagnoses included Adie's pupil right eye, and esotropia.  The examiner was asked to reconcile the VA examination notes from 2009 and 2011 that noted slow reaction to light in both eyes, to the VA examination report of 2012, that made no mention of pupillary reaction.  The examiner opined that the Veteran's slow pupillary reaction in the left eye was likely due to his uncontrolled diabetes, hypertension, and high cholesterol.  The examiner noted that diabetes, hypertension and high cholesterol affected the small blood vessels that control pupillary response.  The examiner opined that the Veteran's left eye symptoms of slow reaction to light were not related to the head injury in service that caused the right eye Adie's pupil.  The examiner also opined that the Veteran's left eye symptoms were not aggravated beyond the normal progression by a service-connected condition, noting that his vision was 20/25 in the right eye and 20/20 in the left eye at distance and he was able to read without restriction.  The examiner noted that the right Adie's pupil preceded the Veteran's history of head trauma in 1989, but the efferent pupillary defect was noted in 1986.  The examiner also noted that the Veteran did not complain of photophobia during the examination.

The Board initially notes that review of the Veteran's medical records and examinations does not appear to show a diagnosis of Adie's pupil of the left eye; rather, examiners have noted that he possibly has Adie's of the left eye, as the eye had a sluggish response to light.  However, he has arguably been shown to have a current disability of the left eye, to include esotropia, and possibly a disorder manifested by sluggish response to light.  

What is missing for the claim for service connection is competent medical evidence of a link between a current left eye disability and active service or a service-connected disability.  In that regard, in 2016, a VA examiner opined that the Veteran's slow pupillary reaction in the left eye was not related to the head injury in service, and was likely due to his uncontrolled diabetes, hypertension, and high cholesterol.  The examiner also opined that his left eye symptoms were not aggravated beyond the normal progression by a service-connected condition.  The Board finds these opinions to be definitive, and probative and persuasive on whether the Veteran has a left eye disability related to service or to a service-connected disability, as they were based on a full review of the claims file, with consideration given to the Veteran's contentions, and included a rationale.  Also, the Veteran has not submitted or identified any supporting medical opinion regarding an etiological relationship to service or to service-connected disability.

The Board has carefully considered the statements and contentions of the Veteran, but finds that the weight of the competent medical evidence is contrary to those contentions.  Although he is capable of describing the history in this case as well as any symptoms, his statements cannot serve to address questions of causation or aggravation, because those are medical questions beyond the purview of lay knowledge.  See Kahana v. Shinseki, supra; see also Jandreau v. Nicholson, supra.

The preponderance of the evidence is therefore against the claim of service connection for a left eye disorder, including Adie's pupil, on both a direct basis and as secondary to service-connected disability.  Thus, the benefit-of-the-doubt rule does not apply and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

2. Right Ankle Disorder

The Veteran contends that his right ankle condition began while he was on active duty, and that he has had problems with ankle swelling since service.  

STRs show that he was seen in September 1988 for right ankle pain.  

Review of the record, however, does not show that the Veteran has a right ankle disability that may be related to service.  As noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder.  See Brammer v. Derwinski, supra.  

On the August 2012 VA examination, the Veteran reported an onset of right ankle pain and stiffness with weight bearing activities occuring in the 1990s, and stated there was no specific known trauma or injury.  After a physical examination of the Veteran, the examiner diagnosed history of arthralgia, right ankle, without residuals.  

In a statement dated in May 2016, the Veteran reported his "right ankle condition DJD" happened on active duty and that it "continually worsened throughout the years".  He also reported his ankle swells and he used hot and cold packs.

On a VA examination in October 2016, it was noted that the Veteran did not have a current diagnosis associated with his right ankle.  It was noted that the Veteran stated he did not relate his occasional right ankle symptoms to any events or conditions of military service, that the reported occasional symptoms onset postdated service, and that he wished to cancel/withdraw his claim for service connection.

The Board acknowledges that the Veteran was treated on one occasion in service for his right ankle and that he has, on at least some occasions, reported having right ankle symptoms since service.  Although lay persons are competent to report any symptoms, and lay persons can provide opinions on some medical issues, the specific issue in this case, the diagnosis of a right ankle disorder falls outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, supra.  Instead, the competent (medical) evidence of record shows that the Veteran has not had a current diagnosis of a right ankle disorder that existed at any time during the appeal.  Specifically, on October 2016 VA examination, no right ankle diagnosis was made, and on August 2012 VA examination, the Veteran was given a diagnosis of history of arthralgia in the right ankle, without residuals.  Arthralgia (i.e., pain) alone, without a diagnosed or underlying malady or condition, is not a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds, 259 F.3d 1356 (Fed. Cir. 2001).  Thus, the criteria for establishing service connection for a right ankle disorder have not been met.  38 C.F.R. § 3.303.




3. Bilateral Foot Disorder

The Veteran contends that he has calluses of the right and left foot which were treated while he was on active duty and which have worsened over the years.

STRs show that on an entrance examination in July 1985, the Veteran was noted to have mild asymptomatic pes planus.  He was treated for foot pain in July 1986.

Review of the medical evidence of record shows that the Veteran has bilateral calcaneal (heel) spurs; thus, he has a current disability.  

What is missing for the claim for service connection is competent medical evidence of a link between a current foot disability and service.  In that regard, on a VA examination in August 2012, the Veteran reported he had foot soreness associated with marches during service but otherwise no significant persisting foot problems during service.  He reported a 2010 onset of bilateral heel pain, at which time an x-ray showed bilateral calcaneal spurs and the diagnosis included plantar fasciitis.  There was no finding of flatfeet (pes planus) on the examination that day.  The examiner opined that it was not likely that the Veteran had the condition of flatfeet (pes planus) prior to service and that it was therefore not likely that there was any aggravation in service.  For rationale, it was noted that the enlistment physical showed mildly low arches that were asymptomatic, and there was one STR which showed foot pain, but no evidence of any further foot complaints in service.  

On the VA examination in October 2016, the examiner opined that it was not likely that the Veteran's bilateral calcaneal spurs were related to service.  For rationale, it was noted that there was no medical evidence of calcaneal spurs during or after service until 2010 which was too remote from military service, and that the reported foot soreness during service was related to marches and boots, but was not specific to the heels so they would not be indicative of possible heel spurs.  The Board finds these opinions to be definitive, and probative and persuasive on whether the Veteran has a bilateral foot disability related to service, as they were based on a full review of the claims file, with consideration given to his contentions, and included a rationale.  The Veteran has also not submitted or identified any supporting medical opinion regarding an etiological relationship to service.

The Board has carefully considered the statements and contentions of the Veteran, but finds that the weight of the competent medical evidence is contrary to those contentions.  Although he is capable of describing the history in this case as well as any symptoms, his statements cannot serve to address questions of causation or aggravation, because those are medical questions beyond the purview of lay knowledge.  See Kahana v. Shinseki, supra; see also Jandreau v. Nicholson, supra.

The preponderance of the evidence is therefore against the claim of service connection for a bilateral foot disorder, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

4. Neck Disorder

The Veteran contends his neck condition is a result of an accident during active duty that resulted in a TBI.  He contends he has had persistent pain and stiffness in his neck that started in service, but that he did not seek treatment for, either in service or until after 2000.

On the VA examination in October 2016, the diagnosis was cervical degenerative osteoarthritis involving spondylosis, stenosis, and mild encroachment.  The Veteran reported a 1989 onset of intermittent instances of occasional neck pain and stiffness related to such conditions as exposure to cold and/or activities that involved prolonged leaning forward of the head.  The examiner reaffirmed the medical opinion and rationale from a prior 2012 VA examination, opining that it was less likely than not that the condition of cervical spine stenosis was related to service.  For rationale, the examiner indicated there was no medical evidence of neck injury associated with the head trauma in April 1989 and no medical evidence of other neck problems or complaints during military service or until 2010, and that in the absence of known trauma, injury, or cervical spine complaints during service, the 2010 VA treatment for cervical spine problems was too remote from service to be considered service-related.  The examiner also indicated that the x-ray study of the neck showed congenital anomalous neck formation which would explain and account for the Veteran's neck complaints and progression to arthritic changes, especially in view of his further congenital, anomalous findings in the lumbar spine x-ray study.  The examiner also noted, however, that she could not opine as to service connection based upon the Veteran's subjectively reported history of neck symptomatology related to the TBI or the back injury event, in the absence of any medical evidence of a neck problem or pathologic condition as related to service, without resorting to mere speculation, especially in the absence of any mention of neck symptoms or problems relative to such events.

The Board concludes that the VA examiner's medical opinion in 2016 is probative of the issue of whether the Veteran's current neck disorder may be related to service in any way.  It included a review of the claims folder, consideration of the Veteran's statements, and provided an explanation and rationale for the opinion.  Moreover, review of the record shows no competent medical evidence to the contrary. 

The Board recognizes that the Veteran has sincerely contended that his neck condition is related to active service.  As noted above, lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation, but the Board does not find the diagnosis and etiology of a neck disability may be subject to lay diagnosis.  See Kahana v. Shinseki, supra.

The Board also recognizes that in various statements the Veteran has asserted that he first experienced cervical pain in service, which continued postservice and worsened through the years, although he did not always seek treatment for such symptoms.  The above discussed evidence does not show, however, that arthritis of the cervical spine was diagnosed until many years after the Veteran's separation from service; therefore, service connection on the basis that arthritis became manifest to a compensable degree within one year of separation from service is not warranted.  

As for the Veteran's allegations of continuous neck pain since service, a veteran is competent to testify regarding facts or circumstances that can be observed and described by a layperson.  However, findings of competency and credibility are two distinct matters, and after a careful review of the evidence, the Board finds that while the Veteran is competent to testify as to observable symptoms, like pain in the neck, his statements that he has had a cervical spine disorder ever since service are not substantiated by the record.  Significantly, his postservice treatment records show that when the Veteran was examined by VA for compensation purposes in 2010, he reported that his neck pain had been present for only the last 3 to 5 years.  Similarly, in March 2015, when the Veteran sought treatment for neck pain, he indicated that it had been present for "several years," although he thought it was related to his in-service injury.  Such statements tend to belie his more recent assertions that he has had neck pain continuously since service.  Accordingly, service connection for a cervical spien disorder on the basis that such disability became manifest in service and persisted since, is not warranted

The preponderance of the evidence is therefore against the claim of service connection for a neck disorder, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

5. Bilateral Hearing Loss

For VA purposes, impaired hearing is considered a disability 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 at 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.

The Veteran essentially contends service connection for bilateral hearing loss is warranted, based on his exposure to excessive noise during his service.  What is missing from the record in this claim, however, is competent medical evidence demonstrating that the Veteran has a hearing loss disability pursuant to 38 C.F.R. § 3.385.  Despite the Veteran's contentions, the competent medical evidence shows that he does not have current hearing loss disability in either ear, as prescribed by VA standards.  See 38 C.F.R. § 3.385.  The reported pure tone thresholds and speech recognition scores made on the VA audiometric examinations in February 2010, July 2011, and October 2016 did not meet the regulatory requirements. 

Full consideration has been given to the Veteran's assertions regarding his hearing loss being related to service.  Lay persons are competent to provide opinions on some medical issues, but the specific issue in this case, the presence of a hearing loss disability for VA purposes, falls outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, supra.  Although the Veteran is competent to report diminished hearing, he is not competent to report the specific results of audiometric and word recognition testing, as required by 38 C.F.R. § 3.385. 

As the Veteran does not have bilateral hearing loss disability, as defined by regulation, the preponderance of the evidence is against the claim.  The claim for service connection for bilateral hearing loss must therefore be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,.

6. Right Knee Disorder

Received from the Veteran in May 2016, was a statement indicating that he did not feel that his right knee was related to his military service, and he wished to "drop this issue".  Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202.  Withdrawal may be made by the veteran or by his authorized representative.  38 C.F.R. § 20.204.  The Veteran has withdrawn the appeal for service connection for a right knee disorder; thus, there remain no allegations of errors of fact or law for appellate consideration.  




III. Increased Rating Claims

Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 

Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Low Back Disability

The Veteran contends he should be entitled to a rating in excess of 10 percent for the service-connected low back disability, which encompasses spondylosis.

The Veteran's low back disability has been evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (lumbosacral strain), which is rated under the General Rating Formula for Diseases and Injuries of the Spine.  Under the Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for a vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent 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.  Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id. at Note (1).  

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined motion for the thoracolumbar spine is 240 degrees.  Id. at Note (2). 

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45.  See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. § 4.45.  

Review of the record shows that on a VA examination in July 2011, the Veteran reported continued management of back symptoms with a conservative lifestyle and medication regimen.  He reported daily intermittent aching discomfort/stiffness that he rated as 3-4 on the pain scale, in the morning, which lasted a few minutes to a few hours until he loosened up.  He reported flare-ups of low back discomfort with aching, rated 8-9 on the pain scale, about once per week, related to wrenching his back or physical overuse.  He reported that the flare-up lasted the remainder of the day, with relief from rest, positioning, stretching and medication, and he was not additionally functionally limited during flare-ups, except for the need to rest.  He walked for exercise and could stand stationary for 3-4 hours, but then had back pain.  He was able to drive but stopped every 1-2 hours to stretch/rest.  Examination of the lumbar spine revealed normal strength, tenderness at the lumbosacral juncture, and lumbar flexion to 90 degrees, with stiff muscular discomfort from 60 to 90 degrees.  Lumbar rotation and lateral lean to the left and right were normal with end range of motion showing muscular tightness/discomfort.  The diagnosis was chronic lumbar strain with radiographic evidence of lumbar sacrilization with congenital defects.  The examiner opined the Veteran would be pre-disposed to recurrent lumbar strain and injury as well as chronic pain symptomatology and he would be better suited for more sedentary types of employment, but gainful employment was not precluded.  

On a VA examination in August 2012, the diagnosis was lumbosacral spondylosis.  The Veteran reported his lumbar spine condition was as much the same as the last examination, with daily morning pain and stiffness, which tended to be worse, but he had good relief with his increased does of Tramadol 1 to 2 times daily, as needed.  He reported having flare-ups with difficulty and increased pain with bending, stooping, and twisting, and lifting/carrying more than 10 pounds, and also stated he had pain with standing more than 3 to 4 hours and walking more than a 1/2 mile.  He reported he was not functionally limited during flares, except for the need to rest more.  Range of motion testing revealed full flexion and extension, with pain at the end ranges of motion, and full right and left lateral flexion and lateral rotation, with no pain.  The Veteran was able to perform repetitive use testing, with no additional loss of function or loss of range of motion, but he did have pain on movement.  There was tenderness to palpation of the L2-3 vertebrae and the left SI joint.  Muscle strength testing was normal, and no atrophy was noted.  Sensory examination was normal, and the Veteran did not report radicular pain.  It was noted that the Veteran did not have intervertebral disc syndrome (IVDS).  He occasionally used a lumbar support, but was able to ambulate independently.  It was noted that the Veteran's thoracolumbar spine condition impacted his ability to work in that physical use activity of the lumbar spine was limited and would interfere with work activities involving physical use.

On a VA examination in October 2016, the diagnosis was lumbosacral spondylosis.  The Veteran reported gradually increased discomfort in the low back over the past 2 years, as well as daily intermittent throbbing/aching, occasionally sharp stabbing pain related to activities, with relief from rest, positioning, medication, TENS unit, hot shower, and a sports rub.  He reported continued conservative symptom management with fairly good results.  He limited stationary sitting/standing to less than 60-90 minutes and stated he could walk a couple blocks before he had to sit to relieve back discomfort.  He limited lifting/carrying to less than 50 lbs.  He denied flare-ups.  Examination revealed normal range of lumbar motion, with pain on range of motion was noted, but the assessment was that this did not result in functional loss.  There was no evidence of pain with weight bearing.  There was tenderness to palpation of T4-6 and L3-S1.  The Veteran was able to perform repetitive use testing, but with no additional loss of function or loss of range of motion.  The examiner was unable to say, without resorting to speculation, whether pain, weakness, fatigability or incoordination, significantly limited the Veteran's functional ability with repeated use over a period of time, noting that he was not examined under these conditions.  Muscle strength testing was normal, and no atrophy was noted.  Sensory examination was normal, and the Veteran did not report radicular pain.  It was noted that he did not have IVDS.  An x-ray showed arthritis of the thoracolumbar spine.  The examiner noted that the Veteran's tandem steps forward and backward, and bilateral high knee raises, were done reasonably well, with little apparent back discomfort.  The examiner noted a congenital anomalous spine formation that would be expected to produce incidences of low back discomfort and to involve progressive degenerative arthritic changes related to usual wear and tear circumstances, which would be greater than the general population without such congenital spine formations.  The examiner opined that the Veteran's condition did not present as unusual or excessively progressed beyond that expected for congenial spine formations.  The examiner also opined that his thoracolumbar spine disability did not impact his ability to work.

After reviewing the record, the Board concludes that a rating in excess of 10 percent is not warranted for the service-connected low back disability.  In that regard, the competent evidence does not demonstrate forward flexion greater than 30 degrees but not greater than 60 degrees; or combined lumbar range of motion not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  Rather, on VA examinations in 2011, 2012, and 2016 there was essentially full forward flexion, and nearly full range of thoracolumbar spine motion, with the combined ranges of motion of the thoracolumbar spine greater than 120 degrees.  At no point did functional limitation further limit range of motion.  While there were findings on the VA examinations of pain, stiffness, and tenderness in the lumbar spine, the Veteran did not have an abnormal gait or abnormal spinal contour.  While he reported having flare-ups in 2011 and 2012, he denied flare-ups in 2016.  In 2012, he reported he was not functionally limited during flares, except for the need to rest more.  Thus, a review of the evidence record shows that the lumbar spine disability was not manifested by complaints or objective findings or functional impairment that would warrant a rating in excess of 10 percent.  Rather, the clinical and reported findings more nearly approximated the criteria for a 10 percent rating.  38 C.F.R. § 4.7. 

The Board has also considered the Veteran's complaints of low back pain and potential additional limitation of functioning resulting therefrom, under the provisions of 38 C.F.R. §§ 4.40, 4.45, for all rating codes potentially applicable to his disability.  However, there is insufficient evidence to conclude that his low back pain and associated symptoms caused such additional functional limitation as to warrant increased compensation pursuant to provisions of 38 C.F.R. § 4.40 or § 4.45 or the holding in DeLuca.  There was no indication that pain, due to disability of the lumbar spine, caused functional loss greater than that contemplated by the 10 percent rating assigned.  While the Veteran no doubt experiences impairment due to his service-connected lumbar disability, his functional impairment would need to be equivalent to forward flexion of the thoracolumbar spine not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, or ankylosis, in order for an increased rating to be assigned, and this has simply not been shown.  Id. 

In summary, the preponderance of the evidence reflects that the Veteran's service-connected low back disability has not been more than 10 percent disabling at any time during the appeal period.  Thus, the benefit-of-the-doubt rule does not apply, and the claim for a rating in excess of 10 percent must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, supra.

2. TBI

The Veteran contends he should be entitled to higher ratings for the service-connected TBI, prior to and effective from January 11, 2017.  

Review of the record shows that in a March 2010 rating decision, the RO granted service connection for TBI with residual photophobia, headaches, and poor concentration, based on STRs which showed the Veteran hit his head on the door of a vehicle.  The RO assigned a 10 percent rating for the service-connected TBI with residual photophobia, headaches, and poor concentration, pursuant to DC 8045.  [The Board notes that in addition to receiving a compensable rating for his cognitive disorder, the Veteran is also separately rated for tinnitus and Adie's pupil, right eye, as residuals of head trauma.]  Thereafter, in a February 2017 rating decision, the RO granted a 40 percent rating, effective from January 11, 2017 (date of the VA examination) for the service-connected TBI with residual photophobia, headaches, and poor concentration, pursuant to DC 8045

Under DC 8045 there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning:  cognitive, emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation under listed facets.  38 C.F.R. § 4.124a. 

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.  Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.  Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.  In a given individual, symptoms may fluctuate in severity from day to day.  Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," to be referred to as the Not Otherwise Classified Table.  Id.  

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the Not Otherwise Classified Table.  However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under this Table.  Id.  

Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder.  When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the Not Otherwise Classified Table.  Id.  

Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code:  Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; any autonomic nerve dysfunctions; and endocrine dysfunctions.  Id.  

The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI.  For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code.  Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition.  The evaluation assigned based on the Not Otherwise Classified Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.  Id 

Consideration is to be given to the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.  Id.  

The Not Otherwise Classified Table contains 10 important facets of TBI related to cognitive impairment and subjective symptoms.  It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total."  However, not every facet has every level of severity.  The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling.  A 100-percent evaluation is assigned if total is the level of evaluation for one or more facets.  If no facet is evaluated as total, then the evaluation assigned is based on the highest level of severity for any facet, where 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.  For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.  Id.  As will be discussed below, the Board finds the competent evidence of record does not establish that the Veteran meets the criteria for a 40 percent disability rating, prior to January 11, 2017.

For the memory, attention, concentration, executive functions facet a "0" level of impairment is assigned with no complaints of impairment.  A "1" level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing.  A "2" level is assigned with objective evidence on testing of mild impairment.  A "3" level is assigned with objective evidence on testing of moderate impairment.  A "total" level is assigned with objective evidence on testing of severe impairment. 

For the judgment facet a "0" level of impairment is assigned for normal judgment.  A "1" level is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.  A "2" level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions.  A "3" level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision.  A "total" level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities. 

For the social interaction facet a "0" level of impairment is assigned when social interaction is routinely appropriate.  A "1" level is assigned when social interaction is occasionally inappropriate.  A "2" level is assigned when social interaction is frequently inappropriate.  A "3" level of impairment is assigned when social interaction is inappropriate most or all of the time. 

For the orientation facet a "0" level of impairment is assigned when always oriented to person, time, place and situation.  A "1" level is assigned when occasionally disoriented to one of the four aspects of orientation.  A "2" level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation.  A "3" level is assigned when often disoriented to two or more of the four aspects of orientation.  A "total" level is assigned when constantly disoriented to two or more of the four aspects of orientation. 

For the motor activity facet (with intact motor and sensory system) a "0" level of impairment is assigned for normal motor activity.  A "1" level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function).  A "2" level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia.  A "3" level is assigned for motor activity moderately decreased due to apraxia.  A "total" level is assigned for motor activity severely decreased due to apraxia. 

For the visual spatial orientation facet a "0" level of impairment is assigned when normal.  A "1" level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as GPS (global positioning system).  A "2" level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS.  A "3" level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS.  A "total" level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. 

For the subjective symptoms facet a "0" level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or the Veteran's work, family of other close relationships (examples are mild or occasional headaches or mild anxiety).  A "1" level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to- moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light).  A "2" level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, the Veteran's work, family or other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days). 

For the neurobehavioral effects facet a "0" level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction.  Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability.  Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects.  A "1" level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them.  A "2" level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them.  A "3" level is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. 

For the communication facet a "0" level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language.  A "1" level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas.  A "2" level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas.  A "3" level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs.  A "total" level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs. 

For the consciousness facet a "total" level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. 

There are five notes that accompany DC 8045.  Only the first four are pertinent to the claim currently before the Board.  Note (1) states that there may be an overlap of manifestations of conditions evaluated under the Not Otherwise Classified Table with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, do not assign more than one evaluation based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, assign a separate evaluation for each condition.  38 C.F.R. § 4.124a, DC 8045.

Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.  Id. at Note (2). 

Instrumental activities of daily living refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone.  These activities are distinguished from "activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.  Id. at Note (3). 

The terms "mild," "moderate," and " severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning.  This classification does not affect the rating assigned under DC 8045.  Id. at Note (4).

The Veteran contends that, prior to January 11, 2017, he should be entitled to an initial rating in excess of 10 percent for TBI with residual photophobia, headaches, and poor concentration, and that effective from January 11, 2017, he should be entitled to a rating in excess of 40 percent.  

Review of the record shows that on the VA examination in January 2010, the Veteran reported that since the head injury in service he continued to have photobia that caused headaches, and difficulty concentrating on tasks and maintaining his attention span.  The examiner indicated that his head injury had stabilized but he continued to experience intermittent headaches, described as daily, throbbing, lasting from a few hours to all day, not debilitating, and relieved by pain medications, a cool cloth, and resting for about an hour.  The examiner indicated that in assessing the Veteran's cognitive impairment and other residuals of TBI not otherwise classified, the Veteran complained of mild memory loss, attention, concentration or executive functions, but without objective evidence on testing; he had normal judgement, his social interaction was routinely appropriate, he was always oriented, he had normal motor activity, he normal visual spacial orientation; he had one or more neurobehavioral effects that did not interfere with workplace or social interaction, that he was able to communicate by spoken and written language and to comprehend, and his consciousness was normal.  

On a VA examination in July 2011, the Veteran reported he injured his head twice in service, and that after the second injury he recovered well with conservative treatment and observation, but reported a dilated right pupil condition which had persisted but had not been particularly problematic other than light sensitivity and focus lag.  He reported he did not have cognitive problems other than some difficulty with focus and concentration for the past 2 to 3 years.  It was noted that his neurologic consultation and work-up, including multiple CT studies of the head, had been normal except for the right pupil condition.  

On a VA examination in August 2012, the Veteran reported that his brain and cognitive symptoms and conditions had not changed since his last VA examination in 2011, other than daily tension-type or sinus headaches that might be a little more severe, but were not prostrating or debilitating, and lasted from 1 to 3 hours with relief from rest or a warm compress/warm shower.  It was noted that headaches could be triggered by sun exposure, stress/fatigue, or loud noise exposure, but there were no migraine features to the headaches as they began in the back of the head and went to the front with no associated nausea, vomiting, or vision changes.  The examiner indicated that in assessing the Veteran's cognitive impairment and other residuals of TBI not otherwise classified, he had a complaint of mild memory loss, attention, concentration or executive functions, but without objective evidence on testing; he had normal judgement, his social interaction was routinely appropriate, he was always oriented, he had normal motor activity, and he normal visual spacial orientation.  The examiner indicated that the Veteran had subjective symptoms that did not interfere with work, instrumental activities of daily living, or work, family, or other close relationships, and that these symptoms included subjectively reported daily headaches, tension or sinus type; decreased ability to concentrate/focus; and some associated difficulty with short term recall; but these were not objectively supported by the examination that day.  It was also noted that the Veteran had no neurobehavioral effects, that he was able to communicate by spoken and written language and to comprehend, and his consciousness was normal.  

On a VA examination in January 2017, the Veteran reported his TBI was not recognized until 2010 when he lost his job at the post office.  He reported he was evaluated and determined to have had a TBI, but was not given any therapy or sent to a neurologist.  He had testing recently because he complained of problems solving logic problems and crossword puzzles, was advised to begin therapy, and was scheduled to start cognitive therapy soon.  It was also noted that the Veteran reported the condition had stayed the same, and he reported minor cognitive issues.  The examiner indicated that in assessing cognitive impairment and other residuals of TBI not otherwise classified, there was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions, resulting in mild functional impairment; this was described as he was unable to multitask, he could not recall instructions even when given repeatedly, he could not recall familiar words, he could not perform a job handling mail as he had mishandled the mail and filed it out of order, and he had to always place items important to daily function in the same location or he could not find them.  

Further on the VA examination in January 2017, it was noted that the Veteran had normal judgement, his social interaction was routinely appropriate, he was always oriented, and he had normal motor activity.  His visual spatial orientation was assessed as mildly impaired for occasionally getting lost in unfamiliar surroundings, difficulty reading maps or following directions, but able to use assistive devices such as GPS.  In describing the Veteran's impaired visual spatial orientation, however, it was noted that he got lost in unfamiliar places, was unable to use GPS, and relied on his family for most of his transportation.  It was noted that the Veteran had no subjective symptoms and no neurobehavioral effects related to his TBI, and he was able to communicate by spoken and written language and to comprehend spoken and written language, and had normal consciousness.  It was noted that he did not have any subjective symptoms, or mental, physical, or neurological conditions or residuals attributable to TBI.  It was noted that neuropsychological testing had been performed in August 2012, and the Veteran was excessively focused on health concerns and seemed to overstate their impact on his ability to work.  It was also noted that the claims were not consistent with his specific health problems, and that behavioral medicine affirmed the observation and diagnosed undifferentiated somatoform disorder.  It was also noted that the Veteran's focus and recall were normal.  The Veteran was asked to identify all symptoms he associated with his TBI, and he indicated he had tinnitus since 2008; had difficulty concentrating, reading, and remembering even familiar words; was unable to multitask and unable to set up assistive devices; had trouble sleeping due to ringing keeping him up or waking him up; and could not tolerate big groups.  The examiner opined that his tinnitus and memory issues, documented as due to TBI, were likely still related; and that his issues of irritability, anger, frustration, crowd avoidance, depression, sleep disorder, and fatigue, were more likely related to behavioral issues/mood, adjustment disorder, and somatoform disorder.

With regard to the appropriate rating under the TBI facets, prior to January 11, 2017, the RO assigned a level of severity of "1" for the memory, attention, concentration, and executive function facet, and the Board concurs with this, acknowledging that the Veteran subjectively complained of a mild impairment in such functions during this time, but the 2010 and 2012 VA examiners did not find objective evidence on testing.  

Effective from January 11, 2017, the RO assigned a level of severity of "2" for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions, resulting in mild functional impairment; and also assigned a level of severity of "2" for the Veteran's visual spatial orientation, assessed as mildly impaired for occasionally getting lost in unfamiliar surroundings, difficulty reading maps or following directions, but able to use assistive devices such as GPS.  The Board, however, finds that resolving reasonable doubt in favor of the Veteran, a level of severity of "3" is more appropriate for his visual spatial orientation, noting that on the VA examination in 2017, it was noted that he got lost in unfamiliar places, was unable to use GPS, and relied on his family for most of his transportation, which more nearly approximates moderately severe impairment of visual spatial orientation.  38 C.F.R. § 4.7.  Accordingly, in light of the level of severity of one of the facets being assigned a "3", a grant of 70 percent would be warranted, effective from January 11, 2017.

The Board also notes that prior to, and effective from January 11, 2017, a level of severity of "0" has been assigned for the judgment facet, because the weight of the evidence, including the findings of the VA examiners in 2010, 2012, and 2017, are consistent with a finding that the Veteran's judgment is normal.  Prior to, and effective from, January 11, 2017, a level of severity of "0" has been applied for the social interaction facet as the Veteran's social interactions are routinely appropriate.  Prior to, and effective from, January 11, 2017, a level of severity of "0" has been assigned for the orientation facet because the Veteran has always been oriented to person, time, place, and situation.  Prior to, and effective from, January 11, 2017, a level of severity of "0" has been assigned to the motor activity facet because the weight of the evidence indicates that the Veteran's motor activity has been normal.

With regard to the subjective symptoms facet, the Board notes that prior to January 11, 2017, the Veteran complained of daily headaches, non-prostrating in nature; thus a separate disability rating for headaches would not be warranted under DC 8100.  Addressing these symptoms under the subjective symptoms facet of the TBI rating criteria (rather than under the Diagnostic Codes listed above), effective prior to January 11, 2017, would not afford the Veteran a higher initial rating, as his headaches and sensitivity to light were assessed as no more than mildly impairing.  The Board also notes that addressing these symptoms under the subjective symptoms facet of the TBI rating criteria (rather than under the Diagnostic Codes listed above), effective from January 11, 2017, would result in a lesser benefit to the Veteran as the subjective symptoms facet provides for a maximum level of impairment of "2," which would result in a maximum 40 percent evaluation.  

The Board notes that the Veteran's tinnitus has been separately service-connected and awarded a 10 percent rating under DC 6260.  Also, the Veteran has a scar related to TBI which has been separately service-connected.  Further, while service connection was granted for depressive disorder, the Board notes that this psychiatric disorder has not been related to the Veteran's TBI, but rather was associated to the Veteran' service-connected low back disability.   

With regard to the neurobehavioral effects facet, the Board notes that prior to January 11, 2017, a level of severity of "0" is warranted as there was no showing that the Veteran experienced one or more neurobehavioral effects that occasionally interfered with workplace or social interactions.  Further, prior to January 11, 2017, a level of severity of "0" has been assigned for the communication facet because the Veteran was able to communicate in and comprehend spoken and written language.

Effective from January 11, 2017, the Board notes that addressing the Veteran's TBI symptoms under the subjective symptoms facet, the neurobehavioral effects facet, or the communication facet, would not result in a greater benefit to the Veteran (than currently being assigned herein) as the subjective symptoms facet provides for a maximum level of impairment of "2" and the neurobehavioral effects facet and the communication facet provides for a maximum level of impairment of "3".  

Finally, the Board notes that the Veteran has remained fully conscious throughout the period on appeal, thus a total rating based on an altered state of consciousness is not warranted.

Accordingly, upon review of the TBI facets, the Board finds that prior to January 11, 2017, the highest facet evaluation is "1", which corresponds to a 10 percent rating.  Effective from January 11, 2017, resolving reasonable doubt in favor of the Veteran, the highest facet evaluation is "3", which corresponds to a 70 percent rating.  Thus, prior to January 11, 2017, the Board denies the Veteran's claim of entitlement to a rating in excess of 10 percent for a TBI, and effective from the Board grants a 70 percent evaluation, but no greater, for a TBI.

3. Dilated Pupil, Right Eye (Adie's Syndrome)

The Veteran's service-connected dilated pupil, right eye, Adie's syndrome, has been evaluated pursuant to 38 C.F.R. § 4.79, DC 6009 (unhealed eye injury), which directs that residuals be evaluated on the basis of either incapacitating episodes or visual impairment, whichever results in a higher evaluation.  

The General Rating Formula for DCs 6000 through 6009 provides for a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  38 C.F.R. § 4.79.

For VA purposes, an incapacitating episode is defined as "a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider."  Id. at Note 1.

Impairment of visual acuity is determined based on the corrected distance vision and/or impairment of visual fields.  38 C.F.R. §§ 4.76, 4.77.  A noncompensable rating is assigned when vision is 20/40 or better in both eyes.  38 C.F.R. § 4.79.

The Veteran contends he should be entitled to a compensable rating, prior to November 2, 2016, and a rating in excess of 10 percent, effective from November 2, 2016, for his service-connected right eye disability.  At the outset, the Board finds that DC 6009 best represents the Veteran's disability and that there are no other more applicable codes under the rating criteria. 

Review of the record prior to November 2, 2016, shows that on a VA examination in December 2009, the Veteran had no complaints or visual symptoms.  His uncorrected visual acuity was 20/20 in each eye.  The examiner concluded that the Veteran did not appear to have pupil defects, other than slow reaction to light, in both eyes.  Bilateral eye scarring was not noted.

In a statement dated in April 2010, the Veteran contended his service-connected right eye warranted a compensable rating, noting he had great difficulty with his right eye because it was sensitive to light, he had to wear sunglasses and had difficulty driving as a result, and he wore special glasses at night.

On a VA examination in July 2011, it was that the Veteran had 20/20 uncorrected visual acuity in both eyes.  It was noted that he did not appear to have pupil defects, other than a slow response to light.  Examination of the eyes revealed that the right pupil was barely larger than the left, with sluggish focus.  He had good peripheral vision, good rapid hand/eye coordination.  He did not wear corrective lenses, although he stated he wore sunglasses to go out in the sunlight and when driving.  Driving at night was unaffected, and no medical treatment was utilized for his eyes.

On a VA examination in August 2012, the Veteran complained that small print was blurry.  His uncorrected visual acuity was 20/20 in each eye. 

In a substantive appeal (VA Form 9) dated in August 2013, the Veteran reported his right eye Adie's syndrome had worsened, and that he suffered with light sensitivity.  He reported he had incapacitating episodes of at least 1 week, if not more, during a 12 month period, with visual impairment.

VA treatment records showed that in September 2014, the Veteran was seen in the eye clinic and the assessment included presbyopia, tonic pupil right eye (longstanding), and visual acuity was 20/20 in both eyes.  He reported his near vision was not as clear as it used to be, but he had no other ocular complaints.

Based on a review of the record prior to November 2, 2016, the Board finds that an initial compensable rating is not warranted for the Veteran's service-connected right eye disability, as the competent medical evidence does not show evidence of incapacitating episodes, impairment of visual fields, or impairment of visual muscle function.  Rather, his symptoms consisted of complaints of sensitivity to light.  Any such symptoms are only compensable when distance vision in both eyes is corrected to no better than 20/40.  While the Veteran reported having incapacitating episodes in August 2013, there is no indication or finding that these episodes were "severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider", as required in the General Rating Formula for Diagnostic Codes 6000 - 6009.

The Veteran also contends he should be entitled to a rating in excess of 10 percent, effective from November 2, 2016, for the service-connected right eye disability.

On a VA examination in November 2016, the Veteran's right eye diagnoses included Adie's pupil, 1989, and esotropia, 1986.  He reported he wore glasses all the time when outside, and that he had eye issues once per week.  He stated he wore amber-tinted glasses inside the house and at night for a year and a half.  He reported that on bright days his right eye closed.  It was noted that he did not come to the examination with any sunglasses or tinted glasses, nor did he have any problems with photobia during any portion of the examination.  Physical examination revealed corrected distance vision was 20/40 or better in both eyes.  There was no afferent pupillary defect present, no diplopia, no scarring or disfigurement attributed to any eye condition.  It was noted that during the past 12 months the Veteran had incapacitating episodes attributable to his eye condition (sensitivity to light) because the right eye closed in bright sunlight, and that the total duration for incapacitating episodes was less than a week over the past 12 months.  The examiner opined that the Veteran's eye condition did not impact his ability to work. 

In order for a rating in excess of 10 percent to be assigned for the Veteran's service-connected right eye disability, effective from November 2, 2016, the competent evidence would need to show either impairment of visual acuity or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  Review of the record, however, shows that his corrected distance vision was 20/40 or better and that the total duration of his incapacitating episodes was less than a week over the past 12 months.  For these reasons, the Board finds that a rating in excess of 10 percent is not warranted, effective from November 2, 2016, for the Veteran's service-connected right eye disability. 
In reaching the above determination, the Board has also considered the Veteran's statements that a compensable rating is warranted.  In this case, his statements are competent evidence as to his symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Indeed, these statements have been considered by both the Board and the VA examiners.  His statements, however, are not competent evidence to identify a specific level of disability relating his right eye to the appropriate rating criteria.  The medical findings, as provided in the VA examination reports and VA outpatient treatment records, considered the Veteran's statements as to the manifestations of his service-connected right eye disability and directly addressed the criteria under which his right eye disability has been evaluated.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims for an initial compensable evaluation, prior to November 2, 2016, and a rating in excess of 10 percent, effective from November 2, 2016, for his service-connected right eye disability, the doctrine is not for application.  Gilbert v. Derwinski, supra.

IV. TDIU rating

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.34l, 4.16(a).  

Review of the record shows that service connection has been established for TBI with residual photophobia, headaches, and poor concentration, rated as 10 percent disabling prior to January 11, 2017 and rated as 70 percent disabling, effective January 11, 2017; lumbosacral spondylosis, rated as 10 percent disabling; depressive disorder, rated as 10 percent disabling; recurrent tinnitus, rated as 10 percent disabling; dilated pupil, right eye, rated as 10 percent disabling; and residuals of laceration to back of scalp, rated as 0 percent disabling.  Review of the record shows that prior to January 11, 2017, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a).  Effective from January 11, 2017, the Veteran does meet the schedular requirements of 38 C.F.R. § 4.16(a).  

Considering the claim for a TDIU rating, effective prior to January 11, 2017, the Board notes that even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b). 

Review of the record shows that on a VA examination in January 2010, it was noted that the Veteran was employed at the Post Office for 2 days a week.  He denied any interference with his job duties, although he admitted some delayed information processing at work.  He also had increased back pain with lifting mail bags over 35 pounds and prolonged standing.  

A note from a VA podiatrist, attached to the Veteran's request to be excused from work at the U.S. Postal Service, was dated in April 2010 and requested that the Veteran be excused from work until a follow-up appointment in May 2010, at which time he would be reevaluated for work limitations.

A report of the Veteran's work hours from the year 2010 at the U.S. Post Office shows that he only worked full time hours for a few weeks.  In a statement attached, the Veteran indicated this showed he was not gainfully employed.

In an employment information form (VA Form 21-4192) dated in September 2010, the Veterans employer indicated he started work in February 1999, and his duties included sorting mail and throwing parcels, and that he was limited to 2 hour work days, 5 to 6 days a week, and wore a back brace. 

A document titled "Resignation from the Postal Service" showed that the Veteran resigned effective October 2010, because he could not stand the pain in his feet and back from working on hard floors and the headaches from the noise and vibration.
On a VA examination in July 2011, the Veteran reported that after service he worked for about a year as a gas station attendant, then for about a year at a Subway, and then for about 10 years he did not work while he assisted with his aunt's household.  After that he worked as a postal clerk for 11 to 12 years, and reported he quit his job due to feet, back, and knee pain problems in October 2010.  He also reported that his Medicare disability application was being processed.  The examiner opined that the Veteran would be predisposed to recurrent lumbar strain and injury, as well as some chronic pain symptomatology so that he would be better suited to more sedentary types of employment, but that gainful employment would not be precluded.  The examiner also indicated that with regard to TBI and Adie's syndrome of the right eye, the Veteran did not currently demonstrate or have medical evidence of cognitive deficit, or residuals of brain disease other than a fairly benign condition of dilated pupil of the right eye with some focus lag, but no other significant eye/vision impairments.  The examiner observed that the Veteran had a significant occupational history with the Postal Service until he chose to terminate employment, without apparently cognitive or functional deficits.  The examiner could not, therefore, conclude that the Veteran was unemployable with regard to these conditions. 

On a VA examination in August 2012, the Veteran reported he was last employed in October 2010 at the Post Office.  He reported he was moved from one post office that downsized to another that said they would work with him, and only made him work 2 hours a day, which was all he could take because of foot pain.  He reported that a podiatrist had placed work restrictions on him, but these were lifted in September 2010 and by that time he had been sent to another office and was doing 8 hour shifts on concrete floors and around machinery, and after about 4 days he went to the ER and got a pain shot and was ordered off of work for 3 days following that.  He reported that he finally realized that the office was not willing to work with him and give him flexibility in terms of hours worked, so he quit. 

On another VA examination in August 2012, the examiner noted that the Veteran stated he was unemployable due to the low back arthritic condition and bilateral feet condition, as well as his mental health concerns.  The examiner opined that the Veteran was excessively focused on health concerns and seemed to overstate the impact of his health concerns on his ability to work.  The examiner opined that the Veteran's exaggerated claims of work interference were not consistent with or supported by his individual examinations for his specific health problems.

On a VA examination of the ankle in October 2016, the examiner opined that the Veteran would be better suited to less physically demanding types of work activities, especially with reasonable accommodations for alternating periods of sitting/standing and moving about. 

Where, as here, the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), prior to January 11, 2017, rating boards should refer to the Director, Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability.  38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993).  The Board is precluded from granting an extraschedular evaluation in the first instance, but must consider referral.  The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age which would justify a TDIU.  38 C.F.R. §§ 3.341(a), 4.19.  

After weighing the medical and lay evidence of record, however, the Board finds that the criteria for referral of TDIU on an extraschedular basis are not met prior to January 11, 2017.  38 C.F.R. § 4.16(b).  In that regard, the negative evidence of record outweighs the positive evidence of record in support of the TDIU claim.  A review of the record shows that the Veteran resigned from his work at the Post Office in October 2010, claiming that his feet, back, and headaches from TBI affected his ability to work.  The competent evidence of record reflects supports a finding that the Veteran's service-connected disabilities affected his ability to work.  However, while acknowledging that the Veteran's service-connected disabilities would impair his ability to work to some extent, the Board finds that the competent evidence does not present evidence such that a referral for extraschedular consideration, prior to January 11, 2017, is required.  In July 2011, the examiner opined that the Veteran would be better suited to more sedentary types of employment, but that gainful employment would not be precluded.  The examiner also could not conclude that the Veteran was unemployable as he had a significant occupational history with the Postal Service until he chose to terminate employment, without apparently cognitive or functional deficits.  In August 2012, the examiner opined that the Veteran's claims of work interference were not consistent with or supported by his individual examinations.  On a VA examination of the ankle in October 2016, the examiner opined that the Veteran would be better suited to less physically demanding types of work activities, especially with reasonable accommodations for alternating periods of sitting/standing and moving about.  This does not rise to the level of being unable to secure or follow a substantially gainful occupation.  

Based on the foregoing, prior to January 11, 2017, the criteria for TDIU or referral for a TDIU are not met.  In making its determination, the Board considered the applicability of the benefit of the doubt doctrine.  38 U.S.C. § 5107; Gilbert v. Derwinski, supra.  However, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  

Effective from January 11, 2017, while the Veteran does meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board finds that competent evidence of record does not show that the Veteran was unable to pursue a substantially gainful occupation due solely to service-connected disability.  The Board notes that the evidence in this type of claim must show that the Veteran is unable to pursue a substantially gainful occupation due solely to his service-connected disability, and the mere fact that a veteran is unemployed or has difficulty obtaining a position in the available employment marketplace is not enough.  The Board also notes that the 70 percent rating granted herein for TBI compensates him for the occupational impairment manifested effective from January 11, 2017.  

On the VA examination in January 2017, the Veteran reported he worked for the post office for several years but starting in 2007, he began having more trouble sorting mail, had problems with window transactions, and finally was sent to another location. He quit because he physically could not do the job.  He reported that his TBI was not recognized until 2010 when he lost his job at the post office, and was found to be mishandling the mail even though he had done the job for years.  He was evaluated and determined to have had a TBI, but reported he was not given any therapy and not sent to a neurologist.  The examiner opined that the Veteran's residual conditions attributable to TBI did not impact his ability to work.  

The Board concludes that the preponderance of the evidence does not show that effective from January 11, 2107, the Veteran's service-connected disabilities precluded him from all forms of substantially gainful employment.  Accordingly, entitlement to a TDIU rating is denied, effective from January 11, 2017.


ORDER

Service connection for a left eye disorder, including Adie's pupil, is denied.

Service connection for a right ankle disorder is denied.

Service connection for a bilateral foot disorder is denied.

Service connection for a neck disorder is denied.

Service connection for bilateral hearing loss is denied.

The claim for service connection for a right knee disorder is dismissed.

A rating in excess of 10 percent for a low back disability is denied.

An initial rating in excess of 10 percent, prior to January 11, 2017, for TBI with residual photophobia, headaches, and poor concentration, is denied.

A 70 percent rating, effective from January 11, 2017, for TBI with residual photophobia, headaches, and poor concentration, is granted, subject to the laws and regulations governing the award of monetary benefits.

A compensable rating, prior to November 2, 2016, for dilated pupil, right eye (Adie's syndrome), is denied.

A rating in excess of 10 percent, effective from November 2, 2016, for dilated pupil, right eye (Adie's syndrome) is denied.

A TDIU rating is denied.




______________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs