Citation Nr: 18149525 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-40 085 DATE: November 9, 2018 ORDER An initial compensable rating of 10 percent for left acetabular fracture with thigh impairment (claimed as left hip condition to include fatigue and pain, hereinafter “left thigh impairment”) is granted. An initial compensable rating for left acetabular fracture with limited flexion (claimed as left hip condition to include fatigue and pain, hereinafter “left hip flexion disability”) is denied. An initial compensable rating for residuals of a traumatic brain injury (TBI) is denied. REMANDED Entitlement to an initial compensable rating for left knee nondisplaced patellar fracture (claimed as left knee condition) is remanded. Entitlement to an initial compensable rating for left olecranon fracture (claimed as left elbow/forearm pain) is remanded. FINDINGS OF FACT 1. For the entire initial period on appeal, the Veteran’s left thigh impairment has been manifested, at worst, by an inability to cross legs and range of motion and joint function additionally limited by pain, fatigue, weakness, or lack of coordination and endurance on repetitive use and during flare-ups; however, there is no limitation of abduction lost beyond 10 degrees, ankylosis, flail joint, or impairment of the femur. 2. For the entire initial period on appeal, the Veteran’s left hip flexion disability has been manifested, at worst, by flexion to 80 degrees, with range of motion and joint function additionally limited by pain, fatigue, weakness, or lack of coordination and endurance on repetitive use and during flare-ups; however, there is no ankylosis, flail joint, or impairment of the femur. 3. For the entire initial period on appeal, the Veteran’s residuals of a TBI have been manifested, at worst, by some subjective complaints of mild memory loss and speech difficulty; however, the objective evidence demonstrates cognitive impairment and other TBI residuals that approximate an overall score of “0” for all facets of TBI. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for left thigh impairment have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5253 (2018). 2. The criteria for an initial compensable rating for left hip flexion disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DC 5252 (2018). 3. The criteria for an initial compensable rating for residuals of a TBI are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.124a, DC 8045 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2010 to March 2016. In the January 2016 claim for compensation, the Veteran sought service connection for 21 claimed disabilities. In a May 2016 rating decision, the VA regional office (RO), as pertinent here, granted service connection for a disability of the right shoulder and assigned a noncompensable rating effective from March 16, 2016. See 38 C.F.R. § 4.71a, DC 5201 (2018). The Veteran submitted a timely Notice of Disagreement in June 2016. While the RO continued the noncompensable rating in a July 2016 Statement of the Case (SOC), in a subsequent July 2016 rating decision, the RO determined a clear and unmistakable error was found and increased the disability rating to 10 percent effective from March 16, 2016. Id. at DC 5201-5003. The Veteran did not file a timely Substantive Appeal for this issue, thus it is not currently on appeal for appellate review. Although the July 2017 supplemental statement of the case (SSOC) referenced the service-connected left hip extension disability as an issue on appeal, the RO properly discussed the Veteran’s perfected appeal for service-connected left hip flexion on the merits. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Higher Initial Ratings The Veteran filed his claim of service connection in January 2016, prior to his discharge from service. Service connection was granted for left thigh impairment, left hip flexion, and TBI in a May 2016 rating decision, and have been evaluated as noncompensable throughout the appeal period since effective from March 16, 2016 (date following separation from active service). The Veteran contends that these disabilities are worse than contemplated by the assigned noncompensable ratings. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the low rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DCs; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The assignment of a particular DC is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the DC, and the demonstrated symptomatology. Any change in a DC by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, however, the evidence does not establish that staged ratings are warranted. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity since the effective date for the awards of service connection on March 16, 2016. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating for left thigh impairment 2. Entitlement to an initial compensable rating for left hip flexion disability Musculoskeletal Rating Criteria In its May 2016 rating decision, the RO granted service connection for left thigh impairment and left hip flexion disability, and assigned noncompensable ratings under DC 5253 and 5252, respectively. Under DC 5253, impairment of the thigh may be rated based on limitation of abduction, limitation of adduction, or limitation of rotation. A 10 percent rating will be assigned for limitation of rotation where the individual cannot toe-out more than 15 degrees on the affected leg, or for limitation of adduction where the individual cannot cross the legs. A 20 percent rating will be assigned for limitation of abduction where there is motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. DC 5252 provides for a 10, 20, 30, or 40 percent rating for flexion of the thigh limited to 45, 30, 20, or 10 degrees, respectively. 38 C.F.R. § 4.71a, DC 5252. The average normal range of motion of the hip is flexion from 0 to 125 degrees and abduction from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. The Board finds that such holding would apply to the various ranges of motion of the hip and thigh as well. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Moreover, when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Analysis Although the RO identified and adjudicated each issue separately, the Board will address the issues together as they stem from the same factual background and are addressed under the same legal basis. The service treatment records (STRs) reflect that the Veteran’s left thigh and left hip were injured in a motorcycle accident in 2011 during service. A May 2015 STR reflects that the Veteran’s thigh was aggravated by activity and standing, with pain and weakness. He was able to go up and down stairs without problems, and he noted that months would pass without any symptoms. The Veteran was afforded a VA examination in February 2016. The Veteran denied use of assistive devices for ambulation. Although the examiner noted that the Veteran denied flare-ups of the hip or thigh, as noted below, the examiner discussed the effect of flare-ups on functionality. Therefore, the Board concludes that the Veteran endorsed flare-ups during the examination. Additionally, the Veteran endorsed functional loss of his left hip and thigh caused by pain from prolonged standing, sitting, and kneeling. On examination, left hip flexion was limited to 115 degrees; extension was limited to 5 degrees; abduction was to 45 degrees, and adduction was to 25 degrees. The examiner noted that adduction was not limited such that the Veteran was unable to cross his legs. External and internal rotation was limited to 25 and 35 degrees, respectively. There was no indication of pain on examination. There was no evidence of pain on weight-bearing, no evidence of crepitus, and no objective evidence of localized pain on palpation of the joint or associated soft tissue. After repetitive use testing, there was no additional loss of left hip function or range of motion. Muscle strength was normal in the left hip and there was no ankylosis of the left hip joint. The examiner noted that pain and weakness could significantly limit functional ability during flare-ups, or when the left hip joint is used repeatedly over a period of time, and that additional limitation due to pain, weakness, fatigability and incoordination are likely to occur. The Veteran was negative for malunion or nonunion of the femur and flail hip joint, and no leg lengthy discrepancy was indicated. Imaging studies were negative for degenerative or traumatic arthritis. The examiner concluded that the Veteran’s hip and thigh disabilities do not impact his ability to perform occupational tasks such as standing, walking, lifting, and sitting. A February 2016 STR reflects that there was no evidence of muscle atrophy of the Veteran’s thighs. An April 2016 VA outpatient note reflects that the Veteran reported continuing pain in his left hip, and that previous x-rays indicated possible nonunion of the fracture in either the hip or pelvis, and new bone formation of the lateral hip area. New x-rays were ordered. An August 2016 VA orthopedic clinic note reflects that the Veteran was experiencing ongoing pelvic pain with sitting. The physician noted that there was no reason for surgical intervention, and recommended that the Veteran use nonsteroidal anti-inflammatory medication and a cushioned pillow when sitting. On examination, the Veteran’s left hip range of motion was noted to be 120 degrees of flexion, “full” extension without notation of range of motion in degrees, internal rotation to 20 degrees, and external rotation to 30 degrees. Neither abduction nor adduction was not noted. The Veteran had no pain with axial loading or log-roll of the left hip. He was neurovascularly intact in the left foot. He denied numbness, tingling or weakness in the left lower extremity. X-rays showed that the left hip joint space is well-maintained. There was evidence of heterotopic ossification overlying the left iliac wing, as well as the greater trochanter of the proximal femur. There is evidence of a mild malunion of the inferior pubic ramus with no effect on the rotation or alignment of the pelvis as a whole. The Veteran underwent a VA examination in May 2017. The Veteran denied use of assistive devices for ambulation. The Veteran endorsed flare-ups of the hip or thigh, describing them as left hip and gluteal pain occurring when crossing his legs or during prolonged sitting on hard surfaces. He noted that a dull ache or soreness during flare-ups can last hours to weeks, and occur every two to three months depending on his physical activities. The Veteran reported that prolonged sitting was painful, limiting his ability to sit to 30 minutes. He also stated that his ability to bend and kneel are limited due to pain. He was not affected by prolonged standing, or by walking or running. On examination, left hip flexion was limited to 80 degrees; extension was limited to 15 degrees; abduction was limited to 40 degrees, and adduction was to 25 degrees. Notably, the examiner noted that adduction was limited such that the Veteran was unable to cross his legs. External and internal rotation was limited to 35 and 15 degrees, respectively. There was evidence of pain during flexion and extension, but the examiner noted that pain did not result in functional loss. There was no evidence of pain on weight-bearing, no evidence of crepitus, and no objective evidence of localized pain on palpation of the joint or associated soft tissue. After repetitive use testing, there was no additional loss of left hip function or range of motion. The examiner noted that he could not say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability of the Veteran’s left hip during flare-ups or with repeated use over a period of time because the Veteran was not being examined during a flare-up or following repeated use of the joint over time. Muscle strength was normal in the left hip and there was no muscle atrophy and no ankylosis of the left hip joint. The Veteran was negative for malunion or nonunion of the femur and flail hip joint, and he has no leg lengthy discrepancy. The examiner noted that no diagnostic testing was conducted for the examination. The examiner concluded that the Veteran’s hip and thigh disabilities impact his ability to perform occupational tasks to the extent that the Veteran is unable to cross his left leg, he experiences pain with prolonged sitting more than 30 minutes, and pain limited his ability to bend and kneel. A. Left Thigh Impairment After a review of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a compensable rating is warranted for the Veteran’s left thigh impairment as it more nearly approximates an inability to cross his legs as required for a 10 percent rating under DC 5253, for the entire period on appeal. Although the February 2016 VA examiner specifically indicated that the Veteran was able to cross his legs, and left adduction was limited to 25 degrees, thigh extension was to 5 degrees, and the examiner also noted that the Veteran would experience “significant” functional limitation during flare-ups due to pain and weakness, which the Board takes into account. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Notably, the May 2017 VA examiner specifically found that adduction was limited such that the Veteran was unable to cross his legs. Accordingly, a 10 percent rating is warranted for limitation of adduction under DC 5253. The Board has considered whether a higher initial rating for the Veteran’s left thigh impairment is warranted; however, the weight of the evidence of record shows that the range of motion of the left thigh does not more nearly approximate abduction limited to 10 degrees, as required for a higher 20 percent rating under DC 5253. Indeed, the February 2016 VA examination found abduction was to 45 degrees, and the May 2017 VA examiner found abduction limited to 40 degrees. B. Left Hip Flexion Disability The Board finds that a compensable rating is not warranted for the Veteran’s left hip flexion disability under DC 5252 as it has not been shown to be manifested by flexion of 45 degrees or less, to include consideration of any additional functional loss due to pain, pain on movement, swelling, weakness, incoordination, to include with repeated use as set forth in 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca, supra. Instead, as discussed above, VA examinations and treatment records show that the Veteran, at most, had flexion of the left hip limited to 80 degrees. The February 2016 VA examination found flexion to 115 degrees; the August 2016 VA orthopedic treatment record notes flexion to 120 degrees; and the May 2017 VA examiner measured flexion to 80 degrees. Thus, the weight of the evidence does not show that the Veteran’s left hip flexion disability more nearly approximates limitation of flexion to 45 degrees, the criteria for a 10 percent rating under DC 5252. The Board acknowledges that that June 2016 and May 2017 VA examiners concluded that they could not determine the resulting loss of function during flare-ups or after repeated use of the joint over time because the Veteran was not being examined during a flare-up or after repeated use over time. Moreover, the Board accepts that the Veteran has flare-ups that may cause significant functional limitation due to pain and weakness. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a compensable evaluation. In order to warrant a compensable rating, there must be the functional equivalent of flexion limited to 45 degrees. Even considering any additional functional loss due to pain, weakness, fatigue, and incoordination, to include during flare-ups and with repeated use over time, the significant difference between the rating criteria and the limits of flexion recorded on objective examination show that Veteran’s left hip flexion disability does not more nearly approximate the criteria for a compensable rating under DC 5252. Id. In summary, the Board finds that the weight of the evidence is against an initial compensable rating for the Veteran’s left hip flexion disability for the entirety of the appeal period. C. Additional Considerations At the outset, the Board notes that service connection for left hip extension and left hip scar were separate granted in the May 2016 VA rating decision and are not currently on appeal for appellate review. See 38 C.F.R. § 4.71a, DC 5251 (2018); 38 C.F.R. § 4.118, DC 7805 (2018). The Board has considered the applicability of any other diagnostic codes pertaining to thigh and hip disabilities, but finds that there are none which would provide higher ratings for which the appropriate symptomatology is shown. There is no evidence of record of ankyloses (DC 5250), and no evidence of flail joint (DC 5254). While the August 2016 VA orthopedic clinic note reflects heterotopic ossification overlying the greater trochanter of the proximal femur, there is no evidence of record of impairment of the left femur (DC 5255). In addition to consideration of the orthopedic manifestations of the left thigh and hip disabilities, consideration may be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. DC 8520 provides ratings for incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124, DC 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. DC 8529 provides a noncompensable rating, or 0 percent, for mild or moderate paralysis of the external cutaneous nerve of the thigh; a 10 percent disability rating for severe to complete paralysis of the external cutaneous nerve of the thigh. 38 C.F.R. § 4.124a. The STRs reflect that the Veteran suffered a laceration to his left thigh and had a probable injury to the lateral cutaneous nerve of the left thigh, with possible involvement of the femoral and obturator nerves as the result of his 2011 motorcycle accident. See e.g. VA physical rehabilitation inpatient note dated March 31, 2011. Electro-myography (EMG) testing suggested axonal loss/damage of femoral nerve at the inguinal ligament. The Veteran was evaluated in May 2011 for a possible nerve graft, and physical therapy was recommended. See STR dated May 2, 2011. In June 2011, the Veteran reported mild electric shock sensations in left thigh, and examination indicated diminished light touch at the medial thigh. An April 2012 Air Force flight medical summary notes that the Veteran’s unspecified nerve injury does not interfere with physical activity. A May 2015 private treatment record reflects the Veteran’s history of nerve damage in his left leg. The Veteran reported that the nerve damage bothered him more with activity or standing, and made his left leg feel weaker. The Veteran’s light touch sensation was intact. The assessment was right lower external paresthesia; there is no diagnosis for the left leg. The VA physician noted that the left thigh nerve had healed as much as it was going to, and recommended that the Veteran could use neuropathic pain medication when it was symptomatic. See Private neurology assessment dated May 29, 2015. Nevertheless, medical records for the period on appeal do not reflect symptoms of nerve damage or neurologic abnormalities related to the Veteran’s left hip flexion and left thigh impairment disabilities. Indeed, the February 2016 and May 2017 VA hip and thigh examinations are silent as to neurological symptoms related to the Veteran’s left hip or thigh; during the May 2017 examination, the Veteran was negative for weakened movement due to muscle injury, disease or injury of the peripheral nerves. In the absence of evidence of neurologic abnormalities associated with the left thigh impairment and left hip flexion disabilities during the period on appeal, a separate evaluation under DCs for peripheral nerves is not warranted. The competent evidence does not reflect any other objective neurologic abnormalities associated with the Veteran’s and left thigh impairment and left hip flexion disabilities so as to warrant any additional separate ratings. 3. Entitlement to an initial compensable rating for residuals of a TBI TBI Rating Criteria In its May 2016 rating decision, the RO granted service connection for residuals of a TBI, and assigned a noncompensable rating under DC 8045. Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: Cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Emotional/behavioral dysfunction is to be evaluated 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 table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. Subjective symptoms may be the only residual of traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of traumatic brain injury are evaluated, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, may be separately evaluated even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified” table. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. 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. Each condition should be evaluated 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 “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. The need for 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. should also be considered. Id. Under DC 8045, the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified” contains 10 important facets of traumatic brain injury 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 4th level, the highest level of impairment, labeled “total.” A 100 percent evaluation will be assigned it “total” is the level of evaluation for one or more facets. If no facet is evaluated at “total,” the overall evaluation is based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and, 3 = 70 percent. However, not every facet has every level of severity. The “subjective symptoms” facet, for example, provides for an impairment level of 0, 1, or 2, which corresponds to 0 percent; 10 percent; and 40 percent, respectively. Notes are included with DC 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified” with manifestations of a combined mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation is not to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, a separate evaluation for each condition will be assigned. Note (2): 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. Note (3): “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. Note (4): The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury 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. Analysis After a review of all the evidence in the Veteran’s case, the Board finds that the evidence does not support an initial compensable rating. As noted above, VA treatment records show that the Veteran had a motorcycle accident in January 2011, during service. The accident resulted in injuries requiring hospitalization, surgery, and subsequent physical rehabilitation. Following recovery, the Veteran’s duty assignments included Airborne Cryptologic Language Analyst. STRs reflects that the Veteran did well in his studies and is fluent in multiple languages, with no deficit in his concentration or limitations in memory. STRs dated March to November 2015 reflect that the Veteran denied neurologic deficits that negatively affected activities of daily living or his ability to accomplish duties. Neurological and psychiatric screenings were normal, and the Veteran obtained waivers for his TBI for airborne duties. In November 2015, the Veteran was asymptomatic in regard to his TBI. He reported that for a while after his accident he felt like he couldn’t talk as well and felt like he was speaking slowly, but it improved and never interfered with his Air Force duties. He reported undergoing six months of training in Arabic, then switching to Spanish and completing Spanish language training in six months. He also reported being fluent in Japanese. On examination, the Veteran’s speech rate, rhythm, tone and volume were within normal limits, and his speech was precise and prosodic. His memory was described as normal as judged by items recalled at five seconds and five minutes. He was noted to be a good historian. During a December 2015 Air Force neuropsychological evaluation, the Veteran’s immediate and delayed memory were noted to be in the average range. Executive functioning was noted to be average to above average. His language scores ranged from average to high average. Spatial skills ranged from average to superior. The psychologist noted that the test data “did not suggest any kind of cognitive dysfunction at this time … and that he appears to have fully recovered from his old TBI and shows no cognitive issues that should interfere with his flying status.” Also, in December 2015, following review of the neuropsychological evaluation, the Veteran’s Air Force psychologist noted that the Veteran showed no evidence of impairment and thus seemed to have recovered fully from his TBI. The psychologist recommended renewal of the Veteran’s flight waiver. In early January 2016, the Veteran submitted claims for VA compensation, including claims for TBI residuals and anxiety. Also in January 2016, the Veteran underwent a VA mental health examination, during which the examiner diagnosed unspecified anxiety disorder. The Veteran complained of mild memory impairment. Objective findings revealed that the Veteran’s memory was within normal limits or expected levels. Judgment was normal, social interaction was routinely appropriate, and the Veteran was noted to always be oriented to person, time, place, and situation. Motor activity and visuospatial orientation appeared normal. At the time of the examination, the Veteran reported no subjective symptoms or neurobehavioral effects. The examiner concluded that the Veteran’s anxiety disorder was not a residual of the Veteran’s TBI. The examiner noted that it was possible to differentiate the symptoms attributable to anxiety and TBI, and concluded that memory impairment reported by the Veteran was likely associated with TBI rather than anxiety. A February 2016 STR notes that the Veteran previously reported progressively worse word finding issues and short-term memory loss, but that he hardly noticed the problems any more. His speech was described as clear, fluent, and normal paced, and his short- and long-term memory were intact. The examiner noted that the Veteran’s TBI appeared to be without permanent sequelae. During a VA TBI residuals examination in February 2016, the VA examiner, a physiatrist, confirmed a diagnosis of TBI. The Veteran reported speech difficulties, i.e. getting words out speaking more slowly, which he said was noted while in the hospital. He also reported mild difficulty with memory within the past year. The examiner noted that during the examination the Veteran reported no impairment of memory, attention, concentration, or executive functions. Judgment was noted to be normal related to TBI. Social interaction was routinely appropriate related to TBI. In terms of orientation, it was noted that the Veteran was always oriented to person, time, place, and situation. Motor activity was noted to be normal related to TBI. Visual spatial orientation was normal. There were no subjective symptoms or neurobehavioral effects related to TBI. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. Consciousness was normal. The examiner concluded that the Veteran’s residuals of a TBI do not impact his ability to work. The examiner opined that the Veteran met the American Congress of Rehabilitation Medicine for a TBI due to his loss of consciousness at the time of his 2011 accident, and posttraumatic amnesia, but that his previously reported memory difficulty is not related to the TBI, stating that symptoms onset for a brain injury would occur within two to four weeks of the initial injury. The Veteran was discharged from active duty in March 2016. An April 2016 VA treatment record notes that the Veteran reported that his memory and cognition were worse than before his 2011 motorcycle accident. However, the Veteran refused a TBI referral. The Veteran reported that he was working full time. An April 2017 VA treatment record notes the Veteran’s subjective report of difficulty with cognition and memory and that had to write down everything to avoid forgetting things. He was referred for a VA speech therapy evaluation. A May 2017 VA speech pathology note indicates that the Veteran reported problems with verbal expression and short-term memory skills, and expressed interest in learning about any strategies, tools or aids that may be available to him to ensure his success in his college graduate classes studying speech pathology. He described a recent tendency to pause, revise and hesitate when expressing himself. The Veteran denied difficulty or concern regarding his articulation or speech intelligibility, and he denied difficulty with listening and listening comprehension. He denied difficulty or concerns related to reading, reading comprehension and writing. In regard to cognitive skills, the Veteran denied difficulty managing his attention and ability to stay focused on tasks. He denied difficulty with organization skill and managing time. The Veteran reported using a variety of compensation strategies, including: re-reading information more than once, writing lots of notes to himself and asking for clarification when needed. He also used a cellular telephone calendar to amplify his organization skills. Cognitive testing detected no difficulty in executive function abilities, when compared to peers. Notably, a memory test indicated moderate difficulty in everyday memory skills when compared to peers. The examiner noted that the Veteran appeared to be a good candidate for cognitive and communication therapy to provide support for his academic success. The Veteran underwent an additional VA examination in June 2017, where the VA examiner, a physiatrist, confirmed a diagnosis of TBI, but noted that the Veteran was taking no medication for TBI. He reported anxiety for which he receives treatment. He denied double vision, headaches, and incoordination. He stated that he is currently in school to become a speech therapist. Although the Veteran complained of mild memory and speech impairment, the examiner noted that the complaints are self-reported and inconsistent with the Veteran’s medical records. Judgment was normal, social interaction was routinely appropriate, and the Veteran was noted to always be oriented to person, time, place, and situation. Motor activity and visuospatial orientation appeared normal. At the time of the examination, the Veteran had no perceived symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI. The examiner noted that neuropsychological testing in December 2015 indicated average to above average cognition. It was further noted that the Veteran could communicate in both written and spoken language, and his consciousness was normal. The examiner opined that the Veteran’s self-reported symptoms are not symptoms of TBI as the medical records reflect a full cognitive recovery from the 2011 injury. On review, and with regard to the specific criteria facets under DC 8045, “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” the Board finds the following for each facet. (1) Memory, Attention, Concentration, Executive Functioning The Veteran is assessed a “0” for no complaints of impairment of memory, attention, concentration or executive functions. While the Board acknowledges the Veteran’s assertion that he has mild memory impairment and speech difficulties, the Veteran, as a lay person, has not been shown to be competent to render such a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, a preponderance of the objective evidence, discussed above, demonstrates that the Veteran’s memory and cognitive abilities are unimpaired. Although the May 2017 VA speech pathology evaluation indicates moderate difficulty in everyday memory skills, weighing this finding against other objective findings in the same report show that the Veteran denied difficulty regarding articulation or speech intelligibility, listening comprehension, reading, comprehension, and writing, and he denied difficulty managing his attention and ability to stay focused on tasks. The May 2017 evaluation must also be weighed with other treatment records indicating no objective indications of memory or speech impairment, as well as the January 2016 and June 2017 VA examinations, which specifically concluded that any memory impairments are not associated with the Veteran’s TBI. Accordingly, the Board finds that the evidence of record warrants a “0” for this TBI facet. (2) Judgment The Board finds that the Veteran’s judgment is normal throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the Veteran demonstrates mildly impaired judgment, including for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. At no time throughout the appeal period does the Veteran demonstrate mildly impaired judgment, based on review of the above evidence. Thus, the Board is unable to assign a higher level of severity for this facet. (3) Social Interaction The Board finds that the Veteran is routinely able to socially interact appropriately throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the Veteran’s demonstrates social interaction that is occasionally inappropriate. At no time throughout the appeal period is the Veteran deemed to be inappropriate in his social interactions by any treating physician or examiner. The Board is therefore unable to assign a higher level of severity for this facet. (4) Orientation The Board finds that the Veteran has always been oriented to person, time, place and situation throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A review of the evidence shows that the Veteran has also been consistently evaluated as oriented to person, time, place, and situation. A higher level of severity of “1” is not warranted unless there is evidence of being occasionally disoriented to one of the four aspects (person, time, place, and situation) of orientation. Thus, the Board cannot assign a higher level of severity for this facet. (5) Motor Activity The Board finds that the Veteran’s motor activity is normal throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the evidence demonstrates that his motor activity is normal most of the time, but mildly slowed due to apraxia. The evidence demonstrates that the Veteran’s motor activity throughout the appeal period is normal without any apraxia. Thus, the Board is unable to assign a higher level of severity for this facet. (6) Visual Spatial Orientation The Board finds that the Veteran’s visual spatial orientation is normal throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the evidence demonstrates mild impairment, such as occasionally getting lost in unfamiliar surroundings, having difficulty reading maps or following directions, but is able to use a Global Positioning System (GPS). The evidence demonstrates that the Veteran is not shown to be mildly impaired in his visual spatial orientation. Thus, the Board is unable to assign a higher level of severity for this facet. (7) Subjective Symptoms The Board finds that the Veteran’s subjective symptoms do not interfere with his work, instrumental activities of daily living, or work, family or other close relationships, throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless there are three or more subjective symptoms that mildly interfere with those areas of the Veteran’s functioning, such as intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, and hypersensitivity to light and/or sound. Again, as noted above, the record reflects that the Veteran has “subjective symptoms,” such as memory impairment. However, as discussed above, these symptoms have been found by the VA physiatrists who conducted January 2016 and June 2017 VA examinations not to be related to the Veteran’s TBI. Thus, the Board is unable to assign a higher level of severity for this facet. The evidence does not demonstrate that the Veteran’s TBI residuals manifest any other subjective symptoms throughout the appeal period, as the VA TBI examiners indicated that there were no subjective symptoms of the Veteran’s TBI during examination. Likewise, the Veteran’s lay statements continually address memory and speech issues, addressed by facets one and nine. Thus, the Board is unable to assign a higher level of severity for this facet. (8) Neurobehavioral Effects The Board finds that the Veteran’s neurobehavioral effects do not interfere with workplace or social interaction, throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless the Veteran’s neurobehavioral effects occasionally interfere with workplace or social interaction, or both, but does not preclude them; examples of neurobehavioral effects include irritability, impulsivity, unpredictability, lack of motivation, verbal or physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired aware of disability. In this case, the Veteran is not shown to have any of the above neurobehavioral effects. The Board is therefore unable to assign a higher level of severity for this facet. (9) Communication The Board finds that the Veteran is able to communicate by, and comprehend, spoken and written language throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “1” is not warranted unless comprehension or expression, or both, of either spoken or written language is only occasionally impaired, and the Veteran is able to communicate complex ideas. Although the treatment records reflect the Veteran’s subjective reports of speaking slowly and difficulty with word finding, no such occasional impairment in either spoken or written language, in either comprehension or expression, is objectively shown throughout the appeal period, nor is the Veteran unable to communicate complex ideas throughout the appeal period. Of note, the Veteran is enrolled in graduate level college courses, demonstrating adequate ability in conveying complex ideas that such a level of education would necessarily entail. Moreover, every examiner has indicated that the Veteran was able to communicate effectively and appropriately throughout the appeal period. Thus, the Board is unable to assign a higher level of severity for this facet. (10) Consciousness The Board finds that the Veteran’s consciousness is normal throughout the appeal period, as demonstrated in the above evidence. Such corresponds to a “0” score for this facet, and does not result in an evaluation in excess of that currently assigned. A higher level of severity of “Total” is not warranted unless there is evidence of persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. The Veteran is clearly not in a persistently altered state of consciousness throughout the appeal period, as demonstrated by the above evidence. Thus, the Board is unable to assign a higher level of severity for this facet. Therefore, with consideration of all pertinent disability factors, there is no appropriate basis for assigning an initial compensable rating for residuals of a TBI. 38 C.F.R. § 4.124a, DC 8045. Lastly, with regard to each issue on appeal, the Board has considered the Veteran’s reported history of symptomatology related to the service-connected left thigh impairment, left hip flexion disability, and residuals of a TBI. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although his descriptions of his symptoms are competent and credible, they do not show that the criteria for an initial rating in excess of 10 percent for left thigh impairment are met nor initial compensable ratings for his left hip flexion disability and residuals of a TBI are met. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). REASONS FOR REMAND 4. Entitlement to an initial compensable rating for left knee nondisplaced patellar fracture (claimed as left knee condition) 5. Entitlement to an initial compensable rating for left olecranon fracture (claimed as left elbow/forearm pain) Due to the similar dispositions for the claims on appeal, the Board will address them in a common discussion below. In the January 2016 claim for compensation, the Veteran sought service connection for 21 claimed disabilities. In a May 2016 rating decision, the RO, as pertinent here, granted service connection for left knee nondisplaced patellar fracture and left olecranon fracture, and assigned noncompensable ratings for both disabilities effective from March 16, 2016. See 38 C.F.R. § 4.71a, DCs 5257 (knee) and 5207 (elbow) (2018). The Veteran submitted a timely Notice of Disagreement in June 2016, the RO continued the noncompensable ratings in a July 2016 SOC, and the Veteran filed a timely substantive appeal in August 2016 for these issues. In a July 2017 rating decision, the RO granted separate service connection claims for left knee nondisplaced patellar fracture (limitation of flexion/painful motion) and left olecranon fracture (limitation of flexion), and assigned 10 percent disability ratings for both, effective from March 16, 2016. See 38 C.F.R. § 4.71a, DCs 5260 (knee) and 5206 (elbow). While the RO noted that the July 2017 decision is considered a full grant on appeal, that was inaccurate and the issues for initial compensable ratings for left knee nondisplaced patellar fracture and left olecranon fracture are still on appeal for appellate review. See 38 C.F.R. § 4.71a, DCs 5257 (knee) and 5207 (elbow). As of this date, these issues were last readjudicated by the RO in the July 2016 SOC. The matters are REMANDED for the following action: Readjudicate the remaining issues on appeal for initial compensable ratings for left knee nondisplaced patellar fracture (under DC 5257) and left olecranon fracture (under DC 5207). If any decision is adverse to the Veteran, issue a SSOC and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel