Citation Nr: 18143410
Decision Date: 10/19/18	Archive Date: 10/18/18

DOCKET NO. 17-45 824
DATE:	October 19, 2018
ORDER
New and material evidence having been received, reopening of the claim for entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disability, is granted.
New and material evidence having been received, reopening of the claim for entitlement to service connection for bilateral hearing loss is granted.
New and material evidence having been received, reopening of the claim for entitlement to service connection for a sleep disability, to include as secondary service-connected disability, is denied.
The claim for entitlement to service connection for major depressive disorder as secondary to service-connected disability is granted.
The claim for entitlement to service connection for hearing loss is denied.
The claim for entitlement to service connection for a left knee disability is denied.
The claim for entitlement to service connection for a right knee disability is denied.
The claim for entitlement to service connection for hypertension is denied.
The claim for entitlement to service connection for a brain aneurysm, to include as secondary to service-connected disability, is denied.
The claim for entitlement to service connection for migraine headaches, to include as secondary to service-connected disability, is denied.
The claim for entitlement to an initial rating higher than 10 percent for tinnitus is denied.
The claim for entitlement to an initial rating higher than 10 percent for a traumatic brain injury (TBI) is denied.
The claim for entitlement to a rating higher than 20 percent for low back degenerative disease with intervertebral disc syndrome (IVDS) prior to March 30, 2017 is denied.
The claim for entitlement to a 40 percent rating, but not higher, for low back degenerative disease with IVDS from March 30, 2017 is granted.
The claim for entitlement to an initial rating higher than 20 percent for radiculopathy of the left lower extremity is denied.
The claim for entitlement to an initial rating higher than 10 percent for radiculopathy of the right lower extremity is denied.
The claim for an effective date of October 17, 2006, but not earlier, for the award of service connection for radiculopathy of the left lower extremity is granted.
The claim for an effective date of October 17, 2006, but not earlier, for the award of service connection for radiculopathy of the right lower extremity is granted.
The claim for entitlement to a temporary total rating for surgery for a brain aneurysm necessitating convalescence is denied.
The claim for entitlement to an effective date earlier than March 13, 2013 for the award of service connection for a TBI is denied.
The claim for entitlement to an effective date earlier than March 11, 2016 for the award of service connection for tinnitus is denied. 
REMANDED
The claim for entitlement to service connection for a sleep disability, to include as due to service-connected disability, is remanded.
The claim for entitlement to service connection for compensation purposes for a dental disability, to include the loss of teeth #13 and #14 is remanded.
The claim for entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is remanded.
FINDINGS OF FACT
1. The claims for entitlement to service connection for an acquired psychiatric disorder (characterized as depression), hearing loss, and a sleep disability, were initially denied in a January 2007 final rating decision. The denial of the claims was continued in a February 2009 rating decision.
2. The evidence received since the February 2009 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claims.
3. Resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s major depressive disorder is etiologically related to a service-connected low back disability.
4. A bilateral hearing loss disability was not present in service or until years thereafter and is not etiologically related to active duty service.
5. The Veteran does not have a left knee disability.
6. The Veteran does not have a right knee disability.
7.  Hypertension was demonstrated years after service and is not etiologically related to an incident of active service.
8. A brain aneurysm was first demonstrated years after service and is not etiologically related to any incident of service or a service-connected disability.   
9. Migraine headaches were not present in service or until years thereafter and are not etiologically related to active service, to include a TBI, or a service-connected disability.
10.  The Veteran experiences bilateral tinnitus.
11. The Veteran’s TBI manifests mild memory loss; there are no other residuals or cognitive, emotional/behavioral, or physical impairment related to the TBI.
12.  Prior to March 30, 2017, the Veteran’s low back degenerative disease with IVDS manifested orthopedic impairment with pain and limitation of motion most nearly approximating forward flexion greater than 30 degrees and a combined range of motion to 115 degrees or better without ankylosis or incapacitating episodes requiring bed rest prescribed by a physician.
13.  From March 30, 2017, the Veteran’s low back degenerative disease with IVDS manifested orthopedic impairment with pain and limitation of motion most nearly approximating forward flexion to 30 degrees without ankylosis or incapacitating episodes requiring bed rest prescribed by a physician.
14. From November 9, 2006, the neurological impairment from the Veteran’s low back disability manifests radiculopathy of the left lower extremity that most nearly approximates moderate incomplete paralysis of the sciatic nerve.
15. From November 9, 2006, the neurological impairment from the Veteran’s low back disability manifests radiculopathy of the right lower extremity that most nearly approximates mild incomplete paralysis of the sciatic nerve.
16. The Veteran underwent surgical treatment for his nonservice-connected brain aneurysm on March 20, 2013.
17. The claim for entitlement to service connection for a TBI (claimed as residuals of a head injury) was received on March 13, 2013; entitlement to the benefit arose on June 21, 2017.
18. The Veteran’s original claim for entitlement to service connection for tinnitus was denied in a final January 2007 rating decision. Notice of the rating decision was provided to the Veteran in February 2007 and no new and material evidence was received in the subsequent year. 
19. The Veteran attempted to reopen the claim for service connection for tinnitus and was most recently denied in February 2009.
20. The latest claim to reopen service connection for tinnitus was received by VA on March 11, 2016. Service connection for tinnitus was granted in an August 2017 rating decision and an initial 10 percent evaluation was assigned from March 11, 2016.
21. The award of service connection for tinnitus in the August 2017 rating decision was not based on receipt of additional service department records or evidence received within a year of the initial decision considering and denying this claim. The date of claim, March 11, 2016 is earlier than the date entitlement to the benefit arose on July 7, 2017.
CONCLUSIONS OF LAW
1. New and material evidence has been received to reopen service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
2. New and material evidence has been received to reopen service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
3. New and material evidence has been received to reopen service connection for a sleep disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
4. Service connection for major depressive disorder as secondary to service-connected disability is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.3310.
5. A bilateral hearing loss disability was not incurred in or aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385.
6. A chronic left knee disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. § 3.303.
7. A chronic right knee disability was not incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303.
8. Hypertension was not incurred in or aggravated by active service nor may its incurrence or aggravation be presumed. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  
9. A brain aneurysm was not incurred in or aggravated by active service or by a service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310.
10. Migraine headaches were not incurred in or aggravated by active service or by a service-connected disability. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310.  
11. There is no schedular basis for the assignment of an initial rating higher than 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260.
12.  The criteria for an initial rating higher than 10 percent for a TBI are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8045.
13.  The criteria for a rating higher than 20 percent for low back degenerative disease with IVDS prior to March 30, 2017 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5235-5243.
14. The criteria for an increased rating of 40 percent, but not higher, for low back degenerative disease with IVDS from March 30, 2017 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5235-5243.
15. The criteria for an initial rating higher than 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520.
16. The criteria for an initial rating higher than 10 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520.
17. The criteria for an effective date of November 9, 2006, but not earlier, for the award of service connection for radiculopathy of the left lower extremity are met. 
18. The criteria for an effective date of November 9, 2006, but not earlier, for the award of service connection for radiculopathy of the right lower extremity are met.
19. The criteria for a temporary total disability rating for brain aneurysm surgery performed on March 20, 2013 are not met. 38 U.S.C. § 1155; 38 C.F.R § 4.30.
20. The criteria for an effective date earlier than March 13, 2013 for the award of service connection for a TBI are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400.
21. The criteria for an effective date earlier than March 11, 2016 for the award of service connection for tinnitus are not met.  38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.156, 3.157, 3.303, 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1981 to January 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from August 2014, November 2016, December 2016, and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

Service Connection and Claims to Reopen
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 
When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date 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. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term “chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).   
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). 
Service connection is also provided for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).
1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disability.
2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hearing loss.
3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a sleep disability, as secondary to service-connected disability.
The claims for entitlement to service connection for an acquired psychiatric disorder (characterized as depression), bilateral hearing loss, and a sleep disability were initially denied in a January 2007 rating decision. The RO found that the record did not establish the presence of chronic psychiatric, hearing loss, or sleep disabilities. The Veteran did not appeal the January 2007 denial of the claims and the rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
The Veteran attempted to reopen service connection for the claimed psychiatric, hearing loss, and sleep disabilities and was most recently denied in a February 2009 rating decision. At that time, the RO found that the record established a current diagnosis of depression, but the condition was associated with post-service stressors, including the deaths of several family members and the Veteran’s relationship problems. The RO also determined that chronic hearing and sleep conditions were not established and there was no evidence of a link on a secondary basis between the claimed disabilities and tinnitus. The RO found that the new evidence was not material and reopening of the claims was denied. The Veteran did not appeal the February 2009 denial of his claims.
The evidence received since the February 2009 rating decision includes new and material evidence. The Veteran was provided a March 2018 private psychiatric examination and medical opinion in support of the claim for service connection for major depressive disorder on a secondary basis. The Veteran was also diagnosed with a hearing loss disability in a November 2016 VA examination and VA treatment records document multiple complaints of sleep problems associated with service-connected low back degenerative disease. This medical evidence is new as it was not previously considered and is material as it relates to previously unestablished facts in the claims—the presence of chronic hearing loss and sleep disabilities and a nexus between the Veteran’s depressive disorder and a service-connected disability. Thus, new and material evidence has been received and reopening of the claims is granted.
4. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disability.
The Veteran contends that service connection is warranted for an acquired psychiatric disorder as secondary to service-connected degenerative disease of the lumbar spine. The record contains some medical and lay evidence in support of the claim; VA clinical records dated throughout the claims period document complaints of a depressed mood related to the Veteran’s chronic low back pain. For example, in September 2007, the Veteran reported that he felt “hopeless” and frustrated because of his chronic back pain. Later that month, the Veteran’s mental health provider included chronic pain as a one of the Veteran’s psychosocial stressors. The record also contains a March 2018 private psychiatric examination report and medical opinion finding that the Veteran’s major depressive disorder began during active duty service and is aggravated by the service-connected low back disability. The private medical opinion, while weighing in favor of service connection, is somewhat inconsistent in nature as the examiner also states that “due to the complex overlap of endorsed symptoms it is inconceivable to differentiate specific causation for disability” just prior to providing a medical opinion linking the disability to service and a low back disability. The examiner also does not thoroughly address the Veteran’s reports that he began using various illegal substances as a teenager prior to his active duty service. Nevertheless, the March 2018 private medical opinion constitutes evidence in support of the claim.
There is also medical evidence weighing against an award of service connection on a direct or secondary basis. Service records are negative for findings of treatment of a psychiatric disorder and there is no medical evidence of an acquired psychiatric disorder (other than substance abuse and dependency) prior to 2001, more than 15 years after service. Records form the VA Medical Center (VAMC) also contain evidence linking the Veteran’s depression and mood disorder to post-service stressors, including the death of family members, relationship problems, and his substance abuse. In July 2017 August 2017, a VA examiner also provided medical opinions against the claim on a direct and secondary basis, finding that the Veteran’s acquired psychiatric conditions were due to substance use disorders which pre-dated active duty service.
The Board finds that the is at least in equipoise regarding service connection for an acquired psychiatric disorder and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Thus, all the elements necessary for establishing service connection on a secondary basis are met and service connection for major depressive disorder as secondary to service-connected low back disability is granted.
5. Entitlement to service connection for hearing loss.
The Veteran contends that service connection is warranted for bilateral hearing loss as it was incurred due to noise exposure during active duty service. As an initial matter, the Board finds that the record establishes the presence of a current bilateral hearing loss disability for VA purposes in accordance with 38 C.F.R. § 3.385. Bilateral sensorineural hearing loss to the degree required by VA was demonstrated at a VA audiological examination in November 2016.  
The Board also finds that an in-service injury is present. The Veteran reports that he was exposed to loud noises during active duty associated with his service duties working with artillery. Service records confirm the Veteran served as a cannon crewman and the noise exposure described by the Veteran is consistent with his duties. Service treatment records are negative for evidence of complaints or treatment related to the Veteran’s hearing, but a June 1983 audiogram documents the Veteran’s exposure to loud noise, while also recording normal hearing test results. The Veteran is competent to report noise exposure during service and the Board finds his statements are credible. The Board therefore finds that the second element of service connection is demonstrated.
Regarding the third element of service connection, a nexus between the Veteran’s hearing loss and the in-service injury/noise exposure, service records do not indicate such a link. Service treatment records are entirely negative for complaints or treatment related to the Veteran’s hearing or ears. The Veteran’s hearing was normal for VA purposes at a June 1983 audiogram (performed six months before separation). The November 2016 VA examiner also specifically found that the Veteran’s hearing did not undergo a significant threshold shift during active duty based review of the service records.  
Additionally, the record does not contain any lay or medical evidence of an audiological defect until October 2006, more than 20 years after service, when the Veteran filed his initial claim for service connection for hearing loss. VA treatment records dated throughout the claims period show that the Veteran has repeatedly denied having any hearing problems, and a hearing loss disability was not diagnosed until a November 2016 VA audiological examination. Based on the above, the Board cannot find that the hearing loss disability manifested to a compensable degree within a year following the Veteran’s separation from active duty. As such, service connection is not warranted on a presumptive basis in accordance with 38 C.F.R. §§ 3.307 and 3.309. Additionally, the absence of any clinical evidence for decades after service weighs against a finding that the Veteran’s hearing loss is etiologically related to active military service.  
There are also no medical opinions in support of the claim. None of the Veteran’s treating physicians have indicated there is a link between his diagnosed hearing loss and noise exposure during service. In fact, the only medical opinion of record, that of the November 2016 VA examiner, weighs against the claim. After reviewing the complete claims file, the VA examiner concluded that it was less likely as not that the Veteran’s current hearing loss disability was related to active duty service. This finding was based on the contents of the service and post-service records which demonstrated normal hearing during active duty and for several decades thereafter. The examiner also cited to a scientific study concluding that a prolonged delay in the onset of noise-induced hearing loss was “unlikely”. The November 2016 VA examiner’s opinion therefore weighs against an award of service connection.
Service connection is also possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing loss is considered a chronic disease under 38 C.F.R. §§ 3.307 and 3.309 (as an organic disease of the nervous system), but the Veteran has never reported a history of continuous hearing loss since active service. The history he has provided is to the effect that he was exposed to loud noises during service which led to hearing loss decades later. Service connection based on a continuity of symptoms under 38 C.F.R. § 3.303(b) is accordingly not possible.
The Board has also considered the Veteran’s statements connecting his current hearing loss to service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to report observable symptoms, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Therefore, his statements linking his current hearing disability to service do not support the claim.  
In sum, although the first two elements of service connection are present in this case, the evidence weighs against a nexus between the Veteran’s hearing loss and service. A chronic hearing loss disability is not demonstrated during service and there is no objective evidence of hearing loss until more than 20 years after military service when the Veteran first filed his claim for compensation. The competent medical evidence of record, including the November 2016 medical opinion, also weighs against service connection. In light of the above, the Board finds that the weight of the competent evidence is against a nexus between the current hearing loss disability and the Veteran’s in-service noise exposure. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C. § 5107(b).
6. Entitlement to service connection for a left knee disability.
7. Entitlement to service connection for a right knee disability.
The Veteran contends that service connection is warranted for left and right knee disabilities as they were incurred due to knee injuries during service. After review of the record, the Board finds that the Veteran does not have a chronic disability of the left or right knee. Although he was treated for acute knee injuries during service, he does not manifest any current disability or chronic residuals of either knee. 
Service treatment records document several knee injuries. In February 1981, the Veteran punctured his left knee with a nail while running an obstacle course. He was diagnosed with a contusion/laceration and an X-ray of the knee was normal. A month later, in March 1981, the Veteran was seen with minimal symptoms of chondromalacia and was diagnosed with left femoral popliteal chondromalacia. With respect to the right knee, the Veteran complained of knee pain in July 1982 and reported dropping a mortar round on his knee several hours previously. He was diagnosed with a probable contusion. 
Although service records show that the Veteran injured his left and right knee on several occasions, they do not indicate that a chronic knee condition was incurred during service. The diagnoses of contusions and lacerations are acute injuries that did not require follow-up treatment. Although the Veteran was found to have signs of chondromalacia of the left knee in March 1981, a June 2017 VA examiner found that this was not evidence of a chronic disability. The examiner noted that the term “chondromalacia” was commonly used interchangeably with “acute patellofemoral syndrome” and did not establish a chronic left knee disability. The examiner also observed that service records did not include any subsequent or recurrent complaints or treatment for knee conditions after the acute injuries discussed above. The Board therefore finds that a chronic knee condition was not incurred during active duty service.
The Board also observes that injuries and conditions documented during active service are not sufficient to establish the presence of a current disability. The requirement of a current disability is met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (finding that the Board must address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In this case, the evidence does not establish the presence of a current disability of either knee and indicates the Veteran’s left and right knee injuries resolved during service without residual disability.
The post-service evidence also does not establish the presence of chronic knee disabilities. Post-service medical records are negative for complaints or treatment related to the Veteran’s knees until August 2002—almost 20 years after service—when the Veteran complained of left knee pain to his private physician. An X-ray of the left knee was normal and there are no other documented complaints of knee pain until November 2011 when the Veteran reported to his VAMC physician that he fell on his left knee. Similarly, the Veteran was also seen in August 2014 and October 2015 with complaints of injuries to the right knee, though again, no chronic conditions were identified. The Veteran also denied any prior right knee injuries when treated for the October 2015 fall. Most recently, in June 2017, a VA examiner concluded that the Veteran did not have any chronic knee disabilities as physical examination of the knees was normal. Therefore, a chronic disability of either knee is not demonstrated by the competent post-service medical evidence. 
The Board further observes that there is no lay or medical evidence of actual functional impairment related to the Veteran’s claimed knee disabilities. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and that “pain alone can serve as a functional impairment and therefore qualify as a disability.”). In this case, the Veteran contends that he injured his knees during active duty and current disabilities are related to that in-service injury. However, he has not provided any statements or argument describing the symptoms and impairment that he experiences due to the clamed knee disabilities. He complained of knee tenderness at the June 2017 VA examination, but the VA examiner determined that there was no functional impairment associated with the Veteran’s complaints of knee pain and tenderness. The Board finds that the medical evidence (and objective test findings) are more probative than the Veteran’s vague statements regarding the presence of any functional impairment associated with the claimed knee disabilities.  Thus, the record does not establish any actual impairment associated with the claimed disabilities. 
The Board has also considered the Veteran’s statements that he manifests current knee disabilities, but the Board finds that the Veteran lacks the expertise to specifically diagnose himself with a chronic disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer, and remanding to the Board to decide whether lay evidence was competent and sufficient to establish a shoulder  dislocation); Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (holding that lay testimony is competent to establish the presence of varicose veins); cf. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Veteran is competent to describe the symptoms manifested by the claimed disability, but as noted above, has not provided any specific statements describing problems or impairment of the knees.
Therefore, the record establishes that the Veteran does not have a chronic disability of either knee. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the preponderance of the evidence is against the claims and they are denied.
8. Entitlement to service connection for hypertension.
The Veteran contends that service connection is warranted for hypertension as it is related to active duty service. The record establishes a current disability as VA treatment records dated throughout the claims period document a history of hypertension requiring medication. 
Although post-service treatment records establish the presence of hypertension, the record does not demonstrate an in-service injury. Service records do not document any instances of elevated blood pressure readings and the Veteran manifested a blood pressure reading of 118/82 in September 1983, several months before his discharge in January 1984. The Veteran has also not identified any in-service cause for his hypertension and has not provided any specific argument in support of his claim. As there is no medical or lay evidence of hypertension during service, to include elevated blood pressure readings, the Board cannot conclude that an in-service injury is demonstrated. 
There is also no competent evidence of a link between the current hypertension and any incident of active duty. As noted above, service records are negative for any complaints or treatment pertaining to hypertension and a chronic disability was not identified during service. There is no post-service evidence of the condition until October 2002, more than 15 years after service, when the Veteran was diagnosed with hypertension by a private physician based on complaints of headaches, dizziness, and findings of elevated blood pressure. Service connection is possible for hypertension on a presumptive basis as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309, but the condition must manifest to a compensable degree within one year of separation. The absence of any clinical evidence for years after service weighs the evidence against a finding that the Veteran’s hypertension was present in service or the year immediately after. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Therefore, service connection on a presumptive basis is not warranted for hypertension and the post-service record weighs against service connection on a direct basis.
The Board also notes that no competent medical provider has provided an opinion in favor of service connection for the Veteran’s hypertension. He has not provided any medical evidence in support of the claim, and none of his treating physicians have identified a link between active duty service and the Veteran’s hypertension.  
The Board has also considered the Veteran’s statements. Service connection is possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is a chronic disability, but the Veteran has not reported experiencing continuous symptoms of hypertension since service. Additionally, while lay persons are competent to provide opinions on some medical issues, the Board finds that the specific issue in this case (whether the claimed disability is etiologically related to service) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). Therefore, the Veteran’s lay opinion as to the cause of his hypertension simply cannot be accepted as competent evidence. Id.  
In sum, the competent evidence of record establishes that the Veteran’s hypertension had its onset years after active duty service. The weight of the evidence is also clearly against an in-service injury or nexus between hypertension and any incident of active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection for hypertension.
9. Entitlement to service connection for a brain aneurysm, to include as secondary to service-connected disability.
The Veteran contends that service connection is warranted for a brain aneurysm on either a direct or secondary basis. In March 2013 and September 2014 correspondence, the Veteran stated that his brain aneurysm was related to a head injury and motor vehicle accident incurred during active duty service in Germany. In the alternative, he contends that his brain aneurysm is a residual of the service-connected TBI related to the same in-service motor vehicle accident. 
The Board will first address the Veteran’s contentions regarding service connection on a direct basis. The record clearly establishes a current disability. The Veteran’s brain aneurysm was first detected on a June 2012 head CT ordered by the Veteran’s neurologist in response to his complaints of chronic headaches. The CT showed a 2 millimeter (mm) unruptured aneurysm of the anterior communicating artery in the brain. The Veteran was assured this was an incidental finding and he was at low risk for rupture. The Veteran returned to his neurologist in January 2013 expressing worry that the aneurysm would burst. Although the neurologist stressed that this was unlikely, the Veteran was referred to a private physician for a diagnostic cerebral angiogram and surgery. In March 2013, the private physician performed an anterior communicating artery clipping. During a follow-up diagnostic angiogram in September 2013 at the VAMC, there was no evidence of a recurrent or follow-up of the aneurysm. Thus, while the Veteran was diagnosed and surgically treated for the aneurysm, the Board observes that the record does not contain any competent evidence establishing the presence of an additional aneurysm or residuals. Nevertheless, as the condition was identified during the claims period, a current disability is demonstrated.
The Board also finds that an in-service injury is present. Service records document the Veteran’s involvement in a motor vehicle accident in March 1983 requiring dental treatment and medical care for a “jammed” right ankle.  In June 2017, the RO determined that the motor vehicle accident occurred in the line of duty. Although service records do not note any complaints or treatment for a head injury incurred in the March 1983 accident, the Veteran is in receipt of service connection for a TBI related to this in-service injury. Thus, VA has determined that the Veteran incurred a head injury during active duty service and in-service injury is established. 
With respect to the third element of service connection, a nexus between the brain aneurysm and active duty, service records do not support the claim. The Veteran was involved in a motor vehicle accident in March 1983 and incurred a head injury, but the service records do not document any actual complaints or treatment for head-related residuals of the accident, to include symptoms of a brain aneurysm. As such, there is no evidence of a brain aneurysm during active duty.
The post-service evidence also does not contain a link between the Veteran’s brain aneurysm and service. None of the Veteran’s treating physicians have identified a relationship between the brain aneurysm and the head injury during active duty, and the only medical opinion of record weighs against the claim. After reviewing the claims file and physically examining the Veteran, the June 2017 VA examiner concluded that the Veteran’s brain aneurysm was not related to in-service head trauma. The examiner further noted that brain aneurysms are not typically due to trauma, but are rather etiologically related to other causes such as genetic factors, cigarette smoking, or hypertension. There is also no evidence of the aneurysm until many years after active service. Head CTs performed at the VAMC in July 2005 and July 2008 were normal; the aneurysm was not observed on imaging until the June 2012 head CT. Therefore, the post-service evidence weighs against service connection for the claimed disability.
The Board has considered the statements of the Veteran. Service connection is possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, the Veteran has also not provided a history of continuous symptoms of a brain aneurysm since service. 
The competent evidence of record is therefore against a nexus between the Veteran’s claimed disability and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection on a direct basis.  
The Board will now turn to whether service connection is warranted for a brain aneurysm as secondary to the service-connected TBI. The Veteran’s argument with respect to this aspect of the claim is similar as that for direct service connection, as the service-connected TBI was also incurred in the March 1983 in-service motor vehicle accident. In any event, there is no competent evidence in support of the claim for secondary service connection. None of the Veteran’s treating physicians have identified a link between the service-connected TBI and the Veteran’s brain aneurysm and the June 2017 VA examiner concluded that the aneurysm was not caused by trauma. The Board has considered the Veteran’s statements regarding the etiology of his brain aneurysm on a direct and secondary basis, but as a lay person he is not competent to render a medical opinion. As there is no competent evidence in support of the claim for secondary service connection, it is also denied. 
In sum, the post-service medical evidence of record shows that the first evidence of a brain aneurysm was many years after the Veteran’s separation from active duty service. In addition, the competent evidence of record weighs against a link between the brain aneurysm and the Veteran’s in-service head injury. The Board therefore concludes that the evidence is against a nexus between the Veteran’s claimed disability and active duty service. Service connection is also not warranted as secondary to the service-connected TBI. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied.  38 U.S.C. § 5107(b).
10. Entitlement to service connection for migraine headaches, to include as due to service-connected disability.
The Veteran contends that service connection is warranted for migraine headaches as the condition was incurred due to an in-service head injury associated with a motor vehicle accident. As such, the Veteran also contends that his migraines should be service-connected and rated as a manifestation and residual of the service-connected TBI. The Veteran also contends that his migraine headaches are aggravated by service-connected tinnitus. After review of the record, the Board finds that the evidence weighs against a link between the Veteran’s migraines and any injury during service or a service-connected disability. In addition, the Board concludes that the history provided by the Veteran (which forms the basis for the private medical opinion in support of the claim) is not credible.
The Board will first address whether service connection is warranted for the claimed migraine headaches as directly due to service and the in-service TBI. The record establishes the first two elements of service connection: a current disability and in-service injury. VA and private medical records document treatment for migraines since 2005 and the Veteran’s VAMC neurologist concluded in July 2012 that the Veteran’s headaches were migrainous in nature.  Migraine headaches were also diagnosed upon VA examination in June 2017.
An in-service injury is also demonstrated as the Veteran incurred a TBI during active duty service. As noted above, service records document the Veteran’s involvement in a motor vehicle accident in March 1983. Although service records do not show treatment or complaints for a head injury, VA has awarded service connection for a TBI associated with the motor vehicle accident. Therefore, an in-service injury is present. 
Turning to the third element of service connection, a nexus between the claimed disability and in-service injury, the Board notes that service records do not support the claim. As noted above, there are no complaints or findings related to headaches in the service records. The Veteran reported during the June 2017 VA examination that his headaches began during active service, approximately one year after the March 1983 motor vehicle accident, but there is no record of headaches in his service records. Thus, service records do not provide evidence in support of a link between the Veteran’s current migraines and any in-service event. 
Post-service treatment records also contain evidence weighing against service connection, including an absence of treatment or complaints until decades after service. There is no competent medical evidence of migraine headaches until May 2005, more than 20 years after service, when a history of migraines was noted during a VAMC admission for substance abuse rehabilitation. The absence of any clinical evidence for decades after service is one factor that weighs the evidence against a finding that the Veteran incurred migraine headaches due to a head injury during service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). VA treatment records dated throughout the claims period also note multiple alternative etiologies for the Veteran’s migraines, to include the chronic use of opiod medication. Furthermore, in August 2014, the Veteran’s neurologist noted that the Veteran’s headaches were worsened by uncontrolled nonservice-connected hypertension and may also be rebound headaches associated with chronic opiod use. This medical evidence weighs against service connection and indicates that the Veteran’s migraine headaches are related to nonservice-connected conditions and events.
The record also contains several medical opinions addressing the etiology of the Veteran’s migraine headaches. Weighing against the claim is the opinion of a June 2017 VA examiner who determined that the Veteran’s migraines are not related to in-service head trauma due to the length of time that passed before their onset. The examiner also noted that the Veteran denied having headaches immediately after the March 1983 motor vehicle accident (as recorded in the VA TBI examination performed on the same day). This opinion was rendered following review of the relevant evidence from the claims file and considered the Veteran’s reported history regarding the onset and development of his disability. The Board therefore finds that it weighs against the claim for service connection.
In support of his claim, the Veteran submitted a private headaches examination and medical opinion dated in March 2018. The Board finds that this medical opinion is of reduced probative value it does not fully address the accurate facts of the case and is not consistent with the other evidence of record. 
The March 2018 private medical opinion is based primarily on the Veteran’s reported history that his headaches began during active duty service and are a residual of the in-service TBI. As noted by the private examiner, the Veteran reported a history of migraine headaches beginning during active duty service approximately one year after the March 1983 TBI. The examiner cited several medical studies and articles in support of a finding that posttraumatic headaches can occur days or “even several months” after the initial injury. However, the Board notes that the Veteran does not report that his migraines began several months after the TBI; rather, he dates their onset to approximately a year after the TBI. This distinction is meaningful as the treatise literature cited by the private examiner does not actually support the private medical opinion. The articles referenced by the private examiner all clearly note that posttraumatic headaches (PTH) are defined as headaches that develop within seven days from a TBI. Additionally, articles from The American Migraine Foundation note that “[s]ome individuals appear to develop PTH in a delayed manner…about one quarter of the patients without headaches immediately after TBI had ‘delayed onset’ headaches at six months.” None of the treatise information provided by the private examiner supports a finding that PTH can develop up to a year after the incurrence of a TBI. In fact, the information cited by the examiner weighs against a finding of service connection in this case, as the Veteran does not report the onset of headaches within the period recognized as establishing a relationship with a TBI. The Board therefore finds that the March 2018 private medical opinion is of reduced probative value.
The Board has also considered the Veteran’s statements reporting the onset of chronic migraine headaches during active duty that have continued to the present day. Service connection is possible for certain chronic disabilities under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology, however, migraine headaches are not chronic diseases as defined in VA regulations. The Board will therefore consider whether the Veteran’s statements support the claim for service connection under 38 C.F.R. § 3.303(a) and (d). 
The Board finds that the history provided by the Veteran regarding the onset and continuous nature of his migraine headaches is not credible. This history is inconsistent with the other evidence of record, including prior statements made by the Veteran identifying numerous other injuries as the cause of his migraines. As noted above, the Veteran currently maintains that his migraine headaches had their onset during service approximately one year after his TBI in March 1983. However, review of the service records is entirely negative for any complaints or treatment for migraines or headaches during service. There is also no evidence of migraines in the post-service records until 2005, more than 15 years after the Veteran’s discharge from service. The lack of any medical treatment for decades after service is facially inconsistent with the Veteran’s reported history of constant headache pain since the 1980s. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility). 
The Board also notes that prior to receipt of his claim for VA benefits in 2013, the Veteran never linked his migraine headaches to the March 1983 motor vehicle accident and TBI. Instead, he identified multiple other post-service causes of the headaches. For example, in March 2008, the Veteran reported to a VA emergency physician the onset of headaches following a post-service 1998 motor vehicle accident when he hit a brick wall at 65 miles per hour with no air bag. The Veteran also stated in June 2012 that he began to experience headaches after a “parachuting accident.” Review of the Veteran’s post-service records also shows that he reported his involvement in a 1986 paratrooper/parachuting accident during a June 2001 private doctor’s visit for low back pain. No mention was made of headaches at that time. Review of the Veteran’s personnel records is entirely negative for any evidence that he participated in paratrooper or parachute training or duties. It was only after receipt of the Veteran’s claim in 2013 that he began to report a history of migraine headaches dating from the March 1983 in-service TBI. Based on the above inconsistencies, the Board finds that the history reported by the Veteran regarding the onset of his migraine headaches is not credible. 
The Board has also considered the Veteran’s statements that his current disability is related to a motor vehicle accident and TBI during service, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. The Board acknowledges that the Veteran is competent to report observable symptoms, such as the onset of migraines headaches, but has determined that this history is not credible. As the competent medical evidence is also against the finding of a nexus between the Veteran’s in-service head injury and his current headaches, all the elements necessary for service connection on a direct basis are not established and the claim must be denied. 
The Board must now determine whether service connection is warranted on a secondary basis for the claimed migraine headaches. The Veteran contends that his tinnitus and associated ringing in his ears has permanently aggravated his headaches. The March 2018 private examiner provided a medical opinion in support of this theory of entitlement, finding that the Veteran’s tinnitus contributed to the aggravation of the Veteran’s headaches beyond their normal progression. This opinion was based on accompanying treatise evidence showing that frequent headaches are common in individuals with tinnitus. The Board notes that the treatise evidence submitted by the private examiner notes that tinnitus and frequent headaches are often found in patients, but the articles do not contain any statements supporting a conclusion that tinnitus can aggravate or worsen the headaches. The articles reviewed by the Board also do not support the examiner’s finding that “tinnitus patients often seek treatment for headaches related to ringing in the ears.” Instead, they note the two conditions are often present in the same patient and increased activity in the masticatory muscles (associated with craniomandibular disorders, including frequent headaches) can increase or cause the perception of tinnitus. Thus, the examiner appears to mischaracterize the contents of the treatise evidence.
In addition, the March 2018 private medical opinion report is not based on the accurate facts of the case. The private examiner states that the Veteran’s migraines have “undoubtedly been present in the current level of frequency and severity since at least 09/19/2016 when the [V]eteran filed his current claim for benefits.” Review of the Veteran’s medical records does not support this statement; in fact, the Veteran’s VAMC records show that his migraine headaches improved during the claims period. In April 2017, the Veteran was noted by his VAMC case manager to have stopped taking his migraine medication “as his headaches had resolved.” After cessation of the medication, the Veteran’s headaches returned as he was counseled to continue taking his medication as ordered. The Board also notes that after August 2014, when his VA neurologist increased his migraine medication, the Veteran made very few complaints regarding his headache disability. This evidence indicates that the Veteran’s migraines have improved during the claims period and have not been aggravated by service-connected tinnitus. This evidence was not discussed by the March 2018 private examiner and the Board finds that the private medical opinion is not based on an accurate review of the facts in the case. It is therefore of little probative value. 
Furthermore, none of the Veteran’s treating physicians have identified a link between the service-connected tinnitus and the Veteran’s migraine headaches. The Board has considered the Veteran’s statements regarding the etiology of his migraine headaches on a direct and secondary basis, but as a lay person he is not competent to render a medical opinion. The Board therefore finds that the evidence weighs against service connection on a secondary basis and the claim is denied. 

Increased Rating
Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
The Veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  In Fenderson, the Court of Appeals for Veterans Claims (Court) also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. The Board must also consider whether a staged rating is warranted in non-initial increased ratings cases.
11. Entitlement to an initial rating higher than 10 percent for tinnitus.
Entitlement to service connection for tinnitus was granted in an August 2017 rating decision with an initial 10 percent evaluation assigned effective March 11, 2016. The Veteran complained of recurrent tinnitus during a July 2017 VA audiological examination and the examiner found that the condition was related to the Veteran’s in-service head trauma. However, the current 10 percent evaluation is the maximum schedular rating available for tinnitus, whether the sound is heard in one ear, both ears, or the head. 38 C.F.R. §4.87, Diagnostic Code 6260. Thus, a rating higher than 10 percent is not warranted and there is no legal basis upon which to award a higher evaluation for tinnitus. The Veteran’s appeal must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  
12. Entitlement to an initial rating higher than 10 percent for a TBI.
Service connection for a TBI (claimed as a head injury) was granted in the August 2017 rating decision on appeal. An initial 10 percent evaluation was assigned effective March 13, 2013. The Veteran contends that a higher initial rating is warranted as his TBI manifests multiple residuals including memory problems, tinnitus, and migraines. 
The Veteran contends that he manifests numerous disabilities and symptoms as residuals of the in-service TBI. He complained of memory problems related to his TBI upon VA examination in June 2017, as well as tinnitus and migraine headaches as a manifestation of the TBI. Regarding the Veteran’s tinnitus, the Board notes that service connection is already in effect for this condition as directly related to service and a separate disability rating and compensation are in place. Therefore, the Board will not address tinnitus in its determination as to the appropriate initial rating for the Veteran’s TBI. The criteria for evaluation TBI also provide for a separate rating when a residual has a distinct diagnosis, to include migraine headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache…). As noted above, the Board has determined that service connection is not warranted for the Veteran’s migraine headaches as a residual of the in-service TBI. Thus, the Veteran’s migraine headaches are also not considered by the Board in its analysis below.
After review of the evidence, the Board finds that the Veteran has only one residual of a TBI that is subject to evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8045: memory loss. This diagnostic code provides for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 
The Veteran was provided a VA TBI examination in June 2017. At that time, the only identified sequela of TBI was memory loss. The VA examiner found that the Veteran manifested normal judgement, social interaction, orientation, motor activity, visual special orientation, neurobehavioral activity, communication, and consciousness. Additionally, none of the Veteran’s VA or private treatment providers has identified any other type of impairment or dysfunction related to the service-connected TBI. The Board therefore finds that the Veteran’s only TBI-related residual is memory loss.
Impairment to memory, attention, concentration, and executive functions is considered cognitive impairment for the purposes of rating a TBI. Cognitive impairments are listed and rated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. The table contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms and provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, with a fifth level labeled total. A 100 percent rating is warranted if a total evaluation level is assigned for one or more facets. If no facet is evaluated as total, the percentage rating assignment is based on the level of the highest facet. A 0 is assigned a 0 percent rating, a 1 receives a 10 percent rating, a 2 receives a 40 percent rating, and a 3 receives a 70 percent rating. A 70 percent rating is assigned if 3 is the highest level of evaluation for any facet.
In this case, the Veteran has some memory loss associated with his TBI. The June 2017 VA examiner assigned the Veteran’s memory loss a severity level of 1, consistent with mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items). As the Veteran manifests one facet of cognitive impairment due to his TBI, and the facet is assigned a level of impairment of 1, a 10 percent rating is appropriate. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. As there are no other identified residuals of the service-connected TBI and the Veteran has not been assigned a facet rating higher than 1, an increased initial rating is not warranted. 
13. Entitlement to an initial rating higher than 20 percent for low back degenerative disease with IVDS.
14. Entitlement to an initial rating higher than 10 percent for radiculopathy of the left lower extremity.
15. Entitlement to an initial rating higher than 10 percent for radiculopathy of the right lower extremity.
16. Entitlement to an effective date earlier than November 9, 2006 for the award of service connection for radiculopathy of the left lower extremity.
17. Entitlement to an effective date earlier than November 9, 2006 for the award of service connection for radiculopathy of the right lower extremity.
Service connection for lower back degenerative disease was awarded in a June 2007 rating decision with an initial 20 percent evaluation assigned effective October 17, 2006. The November 2016 rating decision on appeal continued a 20 percent evaluation and recharacterized the disability as low back degenerative disease with IVDS. The Veteran contends that a higher rating is warranted as his back disability is productive of severe pain that impairs his physical activities and ability to function.
The Veteran’s service-connected low back disability is rated under the general rating formula for diseases and injuries of the spine under Diagnostic Code 5243 for IVDS. IVDS is evaluated under the general formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes in Diagnostic Code 5243, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243.  
Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.
In applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  
The Board finds that an increased 40 percent evaluation is warranted for the orthopedic impairment associated with the service-connected low back disability from March 30, 2017; prior to that date, the criteria for a rating higher than 20 percent are not met. 
Turning first to limitation of motion of the spine, the Veteran demonstrated forward flexion limited to 30 degrees at a March 30, 2017 examination with his primary care doctor at the VAMC. This finding is contemplated by an increased 40 percent evaluation under the general rating formula. The Board therefore finds that a 40 percent rating is appropriate for the low back disability from March 30, 2017. A higher rating of 50 or 100 percent is not warranted as the Veteran does not manifest ankylosis of the spine. None of the Veteran’s treating or examining physicians has ever identified ankylosis of the spine and the October 2016 and June 2017 VA examiners specifically found that the thoracolumbar spine was not ankylosed. Although the Board must consider functional factors when determining the impairment manifested by orthopedic disabilities, the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board cannot conclude that the Veteran’s disability most nearly approximates ankylosis when he clearly retains some useful motion of the thoracolumbar spine throughout period beginning March 30, 2017. The Board finds that the competent evidence of record does not demonstrate ankylosis at any time during the claims period, and a rating in excess of 40 percent is not warranted during the period beginning March 30, 2017 based on limitation of motion.
With respect to limitation of motion prior to March 30, 2017, the Veteran’s low back disability most nearly approximated the criteria contemplated by the current 20 percent rating. Prior to March 30, 2017, range of motion of the thoracolumbar spine was most limited at the October 2016 VA examination, when flexion was measured to 50 degrees with a combined range of motion to 140 degrees. These findings are contemplated by the current 20 percent evaluation. The Veteran did not experience any additional loss of spinal motion with repetitive testing and the examiner also reported spinal motion with consideration of the Veteran’s complaints of pain. The examiner found that the Veteran was limited in ambulation, sitting, and standing for prolonged periods, but this type of functional impairment is considered by the 20 percent evaluation under the general rating criteria. Therefore, even with consideration of all relevant functional factors, the Board finds that a rating higher than 20 percent is not warranted during the period prior to March 30, 2017.
The Board has also considered whether higher ratings are warranted due to intervertebral disc disease. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for rating IVDS, increased evaluations are warranted for intervertebral disc disease manifesting incapacitating episodes of a certain frequency and duration during the last 12 months. An “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately.  In this case, neither the Veteran’s statements nor the objective medical evidence support a finding of incapacitating episodes of back pain. The Veteran reported experiencing flares of low back pain several times a day that were “incapacitating” to the October 2016 VA examiner. He also stated that these flare-ups of back pain left him unable to move until the pain subsided. However, the Veteran has never reported receiving prescribed bed rest from any physician due to back pain and none of his VA or private treatment records indicate instances of doctor-prescribed bed rest. An increased rating is therefore not warranted at any time during the claims period based on intervertebral disc disease.
The evidence establishes that the Veteran’s orthopedic impairment associated with the service-connected disability most nearly approximates a 20 percent rating prior to March 30, 2017 and an increased 40 percent evaluation thereafter. The Board must now consider whether increased initial ratings and effective dates are warranted for the service-connected radiculopathy of the lower extremities. The general rating formula provides for separate ratings for neurologic manifestations of a back disability and the Board will therefore address the current ratings and effective dates for the separate radiculopathy ratings at this time. 
The November 2016 rating decision on appeal, in addition to continuing a 20 percent evaluation for the Veteran’s low back disability, also granted service connection for radiculopathy of the left and right lower extremities. The left lower extremity was assigned an initial 20 percent evaluation effective March 11, 2016 and the right lower extremity was assigned an initial 10 percent evaluation effective March 11, 2016. In an August 2017 rating decision, the RO awarded earlier effective dates for the award of service connection for radiculopathy. Thus, the Veteran’s 20 percent evaluation for left lower extremity radiculopathy is effective from November 9, 2006 and the 10 percent evaluation for right lower extremity radiculopathy is effective from November 9, 2006. 
Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. The Veteran is currently in receipt of a separate 20 percent rating for left lower extremity radiculopathy and a separate 10 percent rating for right lower extremity radiculopathy under Diagnostic Code 8520 for impairment of the sciatic nerve. Under this diagnostic code, incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520.  
Turning first to the Veteran’s contentions regarding the effective date of the separate ratings for radiculopathy, the current effective date of November 9, 2006 was assigned by the RO in an August 2017 rating decision. The RO found that the earliest medical evidence of left and right radiculopathy dated from a November 9, 2006 VA medical record documenting the Veteran’s complaints of pain radiating down both legs, as well as leg weakness and numbness. Although there was no objective evidence of radiculopathy at that examination, the RO concluded that the Veteran’s statements were adequate to establish an ascertainable increase in the Veteran’s low back disability manifested by lower extremity radiculopathy. 
The Board disagrees with the RO’s finding that there was no competent evidence of radiculopathy in the record prior to November 9, 2006. In fact, private treatment records document the Veteran’s complaints of pain radiating down his legs as early as June 2001. A February 2003 lumbar MRI also showed a bulging disc affecting the bilateral S1 nerves. The Veteran was diagnosed with lumbar disc disease and sciatica by a private physician in January 2006. The Board therefore finds that the separate ratings for radiculopathy should be effective from October 17, 2006—the effective date of the award of service connection for the underlying low back disability. An effective date prior to October 17, 2006 is not possible as VA regulations do not authorize an award of benefits on a secondary basis prior to the grant of service connection for the underlying disability, in this case, low back degenerative disease with IVDS. Therefore, the correct effective date for the award of service connection for separate ratings for lower extremity radiculopathy is October 17, 2006.
The Board must now determine whether higher ratings are warranted for the Veteran’s radiculopathy. With respect to the left leg, the Board finds that an initial rating higher than 20 percent is not warranted. The current 20 percent rating is consistent with a finding of moderate incomplete paralysis of the left sciatic nerve. Throughout the claims period, the Veteran has complained of intermittent radiating pain and weakness in the left leg. Lumbar MRIs in December 2006 and August 2013 confirmed the Veteran’s degenerative disc disease impacted the S1 nerve roots and he was diagnosed with radiculopathy upon VA examinations in October 2016 and June 2017. However, on numerous occasions during the claims period, the Veteran did not manifest any objective evidence of radiculopathy, despite his complaints of radiating pain and weakness in the left leg. For example, there was no medical evidence of radiculopathy during an April 2007 VA examination and a VA physician found there was “no evidence of radiculopathy” in October 2007, despite the Veteran’s complaints of radiating pain. It was not until the August 2013 MRI that the Veteran began to manifest consistent objective signs of radiculopathy and no evidence that the condition is more than moderate in severity. The only objective evidence of a loss of sensation dates from March 2017, when the Veteran’s VA primary care doctor noted decreased sensation in the Veteran’s left great toe web. Additionally, the June 2017 VA examiner specifically found that the Veteran’s radiculopathy manifested moderate impairment to the sciatic nerve. The Board therefore finds that the Veteran’s complaints of intermittent left leg radiating pain, numbness, and weakness are contemplated by the currently assigned 20 percent evaluation and an increased rating is not warranted at any time during the claims period. 
Turning to the right leg, the Board similarly finds that an initial rating higher than 10 percent is not appropriate. As with the left leg above, MRIs in December 2006 and August 2013 establish the Veteran’s lumbar degenerative disc disease impacts the bilateral S1 nerve roots, but there is little objective evidence of radiculopathy until after 2013. Prior to that date, the Veteran’s complaints mostly concerned radiating pain and weakness of the left leg, and neurological examination of the lower extremities was normal at the April 2007 VA examination. The more recent VA examinations in October 2016 and June 2017 document the Veteran’s complaints of radiating pain and numbness in the right leg and identified incomplete paralysis of the right sciatic nerve that was no more than mild in severity. The Board therefore finds that a separate 10 percent rating is warranted for right leg radiculopathy throughout the claims period, but the current 10 percent evaluation contemplates the Veteran’s complaints of radiating pain and numbness and findings of mild impairment to the sciatic nerve. 
In sum, the Veteran’s low back disability manifests orthopedic impairment that is properly evaluated as 20 percent disabling prior to March 30, 2017 and 40 percent disabling thereafter. He also experiences neurological impairment from the low back disability manifested by radiculopathy of the left lower extremity rated as 20 percent disabling from October 17, 2006, and radiculopathy of the right lower extremity rated as 10 percent disabling from October 17, 2006. The Board has considered whether there is any other schedular basis for granting higher ratings for the orthopedic and neurological impairment resulting from the Veteran’s back disability other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the grant of higher schedular ratings.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.
18. Entitlement to a temporary total rating for surgery for a brain aneurysm necessitating convalescence.
The Veteran contends that a temporary total rating is warranted for surgery performed on his brain aneurysm on March 20, 2013. Under 38 C.F.R. § 4.30(a), a total disability rating will be assigned if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 
The record establishes that the Veteran underwent an anterior communicating artery aneurysm clipping at a private hospital on March 20, 2013. However, as discussed above, service connection for a brain aneurysm is not warranted. Thus, a temporary total rating is not possible as the March 2013 surgical procedure was not performed on a service-connected disability.  

Effective Date
Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i).
19. Entitlement to an effective date earlier than March 13, 2013 for the award of service connection for a TBI.
Service connection for a TBI was granted in the August 2017 rating decision on appeal effective March 13, 2013. Service connection was granted as the TBI was incurred directly due to service; the evidence established that the Veteran incurred a head injury and TBI during a March 1983 in-service motor vehicle accident. The appellant contends that an earlier effective date is warranted for the award of service connection for a TBI.
The Veteran’s claim for entitlement to service connection for a TBI was received by VA on March 13, 2013. On that date, VA received a phone call from the Veteran for the purpose of filing a claim for a temporary total rating based on surgery requiring convalescence. In an April 2013 written statement, the Veteran clarified that he was requesting a convalescent rating for a surgical procedure on his brain related to a head injury sustained in service. The statement also noted that the Veteran had previously filed a claim for service connection for the head injury. The RO interpreted the Veteran’s March 2013 and April 2013 correspondence as initiating a claim for entitlement to service connection for residuals of a head injury. This claim was granted in the August 2017 rating decision on appeal, characterized as a TBI, and made effective from March 13, 2013—the date of receipt of the initial claim.
The record does not contain any earlier communications from the Veteran indicating an intent to claim service-connected compensation benefits for a head injury/TBI. Although the April 2013 statement from the Veteran indicates that he filed an earlier claim for service connection for a head injury, review of the record does not establish that any such claim was received by VA. Therefore, the March 2013 statement—in which the Veteran requested a temporary total rating based on surgery requiring convalescence—represents the earliest claim for service connection for a head injury/TBI.
The applicable regulation in this case is clear—the effective date of an original award of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In this case, the earliest date that may be assigned is the date of claim. The currently assigned effective date of March 13, 2013, is the date of claim and there is no legal basis for an earlier effective date. The claim must be denied.
20. Entitlement to an effective date earlier than March 11, 2016 for the award of service connection for tinnitus.
The Veteran contends that an earlier effective date is warranted for the award of service connection for tinnitus. The initial claim for entitlement to service connection for tinnitus was denied in a January 2007 rating decision. At that time, the RO found that the evidence of record did not establish a current disability. The Veteran was informed of the rating decision in February 2007 and did not appeal; the January 2007 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
The Veteran attempted to reopen the claim for entitlement to service connection for tinnitus and was most recently denied in a February 2009 rating decision. On March 11, 2016, the Veteran filed a VA Form 21-0966 (Intent to File a Claim for Compensation and/or Pension) and specified in a September 2016 statement that he wished to reopen the claim for entitlement to service connection for tinnitus. In the August 2017 rating decision on appeal, the claim was reopened and service connection was awarded for tinnitus. An initial 10 percent evaluation was assigned effective March 11, 2016, the date the Veteran’s intent to file a claim was received.  
The effective date of an award of service connection based on new and material evidence received after a final adjudication will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
As noted above, the Veteran’s initial claim for service connection for tinnitus was denied in a final January 2007 rating decision. Service connection for tinnitus was eventually granted in the August 2017 rating decision on appeal with an initial 10 percent evaluation assigned effective March 11, 2016. The new and material evidence used to reopen the claim did not consist of service department records.  Moreover, there was no pending (unadjudicated) claim, nor was any additional evidence pertinent to the claim received within a year from the January 2007 initial denial of the service connection claim.  
VA is required to evaluate all submissions received during the year period after the initial adjudication of the claim to determine whether they contain new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011).  Although VA contacted the Veteran on several occasions in the year after February 2007 (to confirm his address and other procedural matters), none of the statements and evidence received by VA pertained to the recently denied tinnitus claim. In fact, the claims file does not contain any new communication from the Veteran pertaining to tinnitus until March 2008, when he filed a claim to reopen service connection for tinnitus. Therefore, it is clear that no new and material evidence was received by VA within a year from February 2007, the date the Veteran received notice of the rating decision denying his claim for service connection for tinnitus.
The effective date for an award of service connection based on new and material evidence is the later of the date entitlement arose or the date the claim was received. Nelson v. Principi, 18 Vet. App. 407 (2004). Thus, an effective date earlier than March 11, 2016 for the award of service connection for tinnitus is not possible in this case. 
The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. Pursuant to this authority, the Board finds that there is no legal basis by which an effective date for the grant of service connection earlier than March 11, 2016 can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400(b)(2)(i).
REASONS FOR REMAND
1. The claim for entitlement to service connection for a sleep disability, to include as due to service-connected disability, is remanded.
2. The claim for entitlement to service connection for compensation purposes for a dental disability, to include the loss of teeth #13 and #14 is remanded.
3. The claim for entitlement to a TDIU is remanded.
The Board finds that a remand is necessary to further develop the record with respect to the three claims remaining on appeal. Regarding the claims for entitlement to service connection for a sleep disability and a dental disability, additional VA medical opinions are necessary to determine the nature and etiology of the disabilities claimed. In this regard, the Board notes that VA treatment records document multiple sleep-related complaints in connection with the Veteran’s service-connected low back disability and psychiatric disorder. However, the evidence does not establish whether the Veteran manifests a chronic sleep disability or whether his sleep problems are merely a symptom associated with a service-connected condition. 
With respect to the claim for compensation for a dental disability, the record contains a July 2017 VA dental examination and August 2017 addendum medical opinion addressing the etiology of the claimed conditions, but the Board finds the opinions of the VA examiner are somewhat confusing regarding their conclusions. A new VA medical opinion is therefore necessary to determine whether the Veteran experienced a loss of teeth due to bone loss related to trauma or disease. See 38 C.F.R. § 4.150, Diagnostic Code 9913, at Note; see also Simmington v. West, 11 Vet. App. 41 (1998) (Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible).
Finally, the Board finds that the Veteran has alleged that he is unemployable due to service-connected disabilities. Therefore, an inferred claim for TDIU has been raised and must be remanded for development and initial adjudication by the agency of original jurisdiction (AOJ). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation).
The matter is REMANDED for the following action:
1. Request that the Veteran submit a properly completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.
2. Obtain an addendum opinion from an appropriate clinician addressing the following:
(a): Does the Veteran manifest a chronic sleep disability and if so, is it at least as likely as not caused or aggravated by the service-connected low back disability, tinnitus, or psychiatric disorder?
(b): If the Veteran does not manifest a chronic sleep disability, are his complaints of trouble sleeping a symptom of the service-connected low back disability, tinnitus, or psychiatric disorder?
VA and private treatment records document the Veteran’s complaints of sleep problems associated with low back pain and depression. The Veteran also maintains that his service-connected tinnitus makes it difficult to sleep. The Board must determine whether the Veteran manifests chronic sleep impairment that is its own separate disability or merely a symptom of an already service-connected disability. If the Veteran has a sleep disability, the Board must also determine whether this disability is secondary to a service-connected condition.
3. Obtain an addendum opinion from an appropriate clinician addressing whether the Veteran experienced a loss of teeth during service related to bone loss caused by trauma. After review of the claims file, including the service dental records, the examiner must determine whether it is at least as likely as not that the Veteran’s loss of teeth during service was due to loss of substance of the maxilla or mandible caused by trauma associated with the March 1983 motor vehicle accident.
Service treatment record document the Veteran’s involvement in a March 1983 motor vehicle accident. His dental records show that teeth #13 and 14 were avulsed and extracted due to injury in the accident. However, service connection is only possible for a loss of teeth that is due to bone loss or disease (such as osteomyelitis). Therefore, the clinician must determine whether the Veteran’s motor vehicle accident resulted in a loss of the substance of the maxilla or mandible such that the teeth necessitated extraction. 
 
4. Then adjudicate the claim for entitlement to TDIU.   

 
M. H. HAWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Riley, Counsel