Citation Nr: 18160714 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-17 584 DATE: December 27, 2018 ORDER A 70 percent rating, but no higher, for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted. A 50 percent rating, the maximum schedular rating, for migraine headaches is granted. A 10 percent rating, but no higher, for hiatal hernia is granted. A 20 percent rating, but no higher, for a chronic left ankle sprain, is granted. A rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is denied. An effective date of August 8, 2013, but no earlier, for the grant of service connection for PTSD with MDD is granted. An effective date of August 8, 2013, but no earlier, for the grant of service connection for migraine headaches is granted. An effective date of August 8, 2013, but no earlier, for the grant of service connection for hiatal hernia is granted. An effective date of August 8, 2013, but no earlier, for the grant of service connection for a chronic left ankle sprain is granted. An effective date of August 8, 2013, but no earlier, for the grant of service connection for a TBI is granted. An effective date of August 8, 2013, but no earlier, for the grant of service connection for the thoracic spine disability is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 10 percent for the service-connected thoracic spine disability is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD with MDD symptoms more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, family relations, thinking, and mood. 2. The evidence is at least in equipoise as to whether the Veteran’s migraine headache disability is productive of frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran’s hiatal hernia has been manifested by recurrent epigastric distress with symptoms of pyrosis, reflux, and sleep disturbance cause by esophageal reflux, but it has not been shown to be productive of considerable impairment of health. 4. The Veteran’s left ankle disability is characterized by pain and limitation of motion that more nearly approximates marked limitation of motion. 5. The Veteran’s TBI is not manifested by any facet equating to higher than a level “1” under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 6. Although the Veteran filed his claims for service connection in July 2011, he was released from active duty service on August 7, 2013. As such, the grant of service connection for PTSD, TBI, thoracic spine disability, hiatal hernia, migraine headaches, and the left ankle disabilities should have been made effective August 8, 2013, the day following service separation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD with MDD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The maximum schedular criteria of a 50 percent rating for migraine headaches are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 8100 (2017). 3. The criteria for a 10 percent rating, but no higher, for hiatal hernia are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2017). 4. The criteria for a 20 percent rating, but no higher, for the left ankle disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5271 (2017). 5. The criteria for a rating in excess of 10 percent for residuals of a TBI are not met. 38 U.S.C. §§ 1154 (a), 1155, 5107(b); 38 C.F.R. § 3.102, 4.124a, Diagnostic Code 8045 (2017). 6. The criteria for an effective date of August 8, 2013, but no earlier, for the grant of service connection for PTSD with MDD, are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 7. The criteria for an effective date of August 8, 2013, but no earlier, for the grant of service connection for migraine headaches, are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 8. The criteria for an effective date of August 8, 2013, but no earlier, for the grant of service connection for a hiatal hernia, are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 9. The criteria for an effective date of August 8, 2013, but no earlier, for the grant of service connection for a left ankle disability, are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 10. The criteria for an effective date of August 8, 2013, but no earlier, for the grant of service connection for a TBI, are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 11. The criteria for an effective date of August 8, 2013, but no earlier, for the grant of service connection for a thoracic spine disability, are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1996 to November 28, 2008. The Veteran’s period of active duty service from November 29, 2008 to August 7, 2013 has been deemed dishonorable for VA purposes. See March 2015 Administrative Decision. This matter comes to the Board of Veterans’ Appeals (Board) from the June 2015 and July 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Disability Ratings-Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). 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); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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.”). Psychiatric Disability The Veteran maintains that his PTSD with MDD is more severe than what is contemplated by the currently assigned 50 percent evaluation throughout the entire initial rating period on appeal. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran’s own occupation or name. Id. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). VA treatment records include a January 2014 psychiatry note. At that time, the Veteran reported symptoms of anxiety, stress, relationship issues, and anger. The Veteran denied suicidal or homicidal ideation, but reported low mood and anxiety and relationship issues. The Veteran was afforded a VA psychiatric examination in April 2015. At that time, the Veteran was diagnosed with PTSD, major depressive disorder, and a cognitive disorder. The examiner indicated that the Veteran’s cognitive disorder was due to his service-connected TBI disability. During the evaluation, the Veteran reported that he had a “distant” relationship with his parents and siblings. He also reported a difficult relationship with his wife and was distant from his children. Current symptoms were noted to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, The Veteran submitted a private psychiatric examination dated in April 2018 from Dr. Galligan. During the evaluation, Dr. Galligan indicated that the Veteran’s depressive disorder and cognitive disorder had similar, overlapping symptoms that could not be differentiated from his PTSD disability. The Veteran reported having strained marriage and reported social and relationship problems consisting of anxiety, isolation, withdrawal, and irritability. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened effect, disturbance of motivation and mood, persistent delusions or hallucinations, an inability to establish or maintain relationship, and difficulty adapting to stressful circumstance. Dr. Galligan noted that the Veteran’s disability more nearly approximated social and occupational impairment in most areas—consistent with a 70 percent disability rating. Dr. Galligan also opined that the Veteran’s PTSD with MDD resulted in him being unable to sustain the stress from a competitive work environment. Although the Veteran reported that he was attending school full-time, it was noted that he was having a very difficult time keeping up with coursework, making deadlines, and being around other students due to his psychiatric disabilities. The Veteran indicated that he had been contemplating dropping out of school or, at the very least, reducing his full-time status. Upon review of all the evidence of record, the Board finds that the Veteran’s PTSD with MDD disability more nearly approximated a 70 percent rating for the entire period on appeal. Dr. Galligan specifically indicated that the Veteran’s psychiatric disability resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Further, the Veteran has reported having a strained marriage and difficulty with tasks and assignments in school. He has been found to be socially withdrawn and has difficulty establishing and maintaining relationships. As such, the Board finds that the Veteran’s PTSD with MDD disability more nearly approximates the 70 percent rating criteria for the entire initial rating period on appeal. This determination (grant of a 70 percent evaluation for PTSD with MDD) appears to be consistent with the Veteran’s representative’s request as outlined in the September 2018 Brief in Support of Veteran’s Claims. The Board further finds that, for the entire rating period on appeal, the Veteran’s PTSD with MDD does not more nearly approximate a 100 percent disability evaluation. In reaching this conclusion regarding the degree of occupational and social impairment, the Board has considered all the Veteran’s psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as “like or similar to” the symptoms in the rating criteria. See Mauerhan, 16 Vet. App. at 442 (stating that the symptoms listed in VA’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous). With this in mind, the evidence shows that the Veteran’s overall psychiatric disability picture is already adequately contemplated by the 70 percent rating, granted herein. The Veteran does experience disturbance of motivation and mood, panic attacks, and difficulty sleeping, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria. The same is true with the Veteran’s near-continuous depression, anxiety, and difficulty in establishing and maintaining relationships, which are all symptoms contemplated under the 70 percent rating criteria. Further, although the Veteran has reported some difficulty with his wife and children, he has remained married and is attending school, despite some difficulty with assignments and fellow students. Moreover, although the Veteran has been found to have some social isolation and decreased motivation, at no time during the appeal period have any examiners (both VA and private) indicated that the Veteran’s PTSD with MDD resulted in total social impairment. For these reasons, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. Migraine Headaches The Veteran contends that he is entitled to a rating in excess of 30 percent for his migraine headache disability. The Veteran’s migraine headaches have been appropriately rated under Diagnostic Code 8100. Under this Diagnostic Code, a 30 percent rating is granted for characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is granted for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating.” By way of reference, according to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 1367 (28th Ed. 1994), “prostrating” is defined as “extreme exhaustion or powerlessness.” The evidence includes a May 2015 VA examination report. Current symptoms were noted to include nausea, sensitivity to light, sensitivity to sound, pulsating or throbbing head pain on both sides. The examiner then noted that the Veteran had very frequent prostrating and prolonged attacks of migraine pain that occurred more than once per month. It was also noted that the Veteran’s migraine disability impacted his ability to work. The Veteran submitted a medical opinion by Dr. Skaggs (dated in November 2017), which also indicated that the Veteran’s disabilities (to include migraine headaches) resulted in an inability to maintain substantial gainful employment. Dr. Skaggs specifically discussed the 2015 VA examination report and the Veteran’s wife’s statements, which noted that the Veteran had prostrating attacks of headache pain 3 times a week, lasting up to 24 hours in duration. The Veteran was noted to have missed many classes at school due to his headaches. Upon review of the evidence of record, lay and medical, the Board finds that the Veteran is entitled to a 50 percent rating for the entire period on appeal, as the VA examination demonstrates that the Veteran suffers from very frequent, prostrating, and prolonged headache attacks productive of severe economic inadaptability. Further, the Veteran and his wife are competent to provide evidence regarding the severity of frequency of headaches. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a 50 percent (maximum schedular rating) is warranted for the Veteran’s migraine headache disability for the entire initial rating period on appeal. This determination appears to be consistent with the Veteran’s representative’s request as outlined in the September 2018 Brief in Support of Veteran’s Claims. Hiatal Hernia The Veteran maintains that his hiatal hernia disability is more severe than what is contemplated by the currently assigned noncompensable rating. The Veteran’s hiatal hernia has been appropriately rated under Diagnostic Code 7346. 38 C.F.R. § 4.114. Diagnostic Code 7346 (hiatal hernia) assigns a 10 percent evaluation where there are two or more of the symptoms of a 30 percent evaluation with less severity. A 30 percent rating for a hiatal hernia is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. The evidence includes an April 2015 VA examination. At that time, the Veteran was noted to have symptoms of pyrosis, reflux, and sleep disturbance caused by esophageal reflux. These symptoms were noted to occur more than 4 times a year and lasted from 1-9 days. The Veteran also reported having nausea less than 1 day per year. The evidence of record shows that the Veteran’s hiatal hernia results in recurrent epigastric distress with symptoms of pyrosis, reflux, and sleep disturbance caused by esophageal reflux. Further, the Veteran reported experiencing these symptoms more than 4 times a year. For these reasons, the Board finds that the Veteran’s symptoms more nearly approximate a 10 percent evaluation as the Veteran had at least two of the symptoms that are “like or similar” to those listed under the 30 percent evaluation under Diagnostic Code 7346. The Board finds, however, that for the entire rating period on appeal the criteria for a higher 30 percent rating under Diagnostic Code 7346 have not been met or more nearly approximated for any portion of the rating period as the Veteran’s hiatal hernia is not shown to be productive of considerable impairment of health at any time during the appeal period. See 38 C.F.R. § 4.114. As noted by the April 2015 VA examiner, the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his hiatal hernia disability. The remaining evidence of record does not suggest any considerable impairment of health due to his hiatal hernia disability. For these reasons, the Board finds that the weight of the evidence does not establish considerable impairment of health due to the service-connected hiatal hernia under Diagnostic Code 7346. See 38 C.F.R. § 4.114. As such, the Board finds that the criteria for a 10 percent evaluation, but no higher, are met for the hiatal hernia disability throughout the rating period on appeal. Left Ankle The Veteran claims that he is entitled to a rating higher than 10 percent for his left ankle disability. Limitation of motion of the ankle is rated under Diagnostic Code 5271. Under this diagnostic code, a 10 percent evaluation is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2015). However, the Rating Schedule provides some guidance by defining full range of motion of the ankle as from zero to 20 degrees of dorsiflexion and from zero to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71, Plate II (2017). The evidence includes a June 2015 VA examination where the Veteran reported that he experienced flare-ups of the left ankle which result in a severe limp, pain, and difficulty walking. During these flare-ups, the Veteran stated that his ankle was “non functional” for all intensive purposes. Upon range of motion testing, dorsiflexion was limited to 15 degrees (out of the normal 20 degrees). Plantar flexion was limited to 20 degrees (out of the normal 45 degrees). Pain was noted to cause functional loss and there was evidence of pain on weight bearing. Repetitive use testing did not additionally limit motion. However, the examiner indicated that, with repeated use over time and during flare-ups, the Veteran’s left ankle disability would be additionally limited in motion, in that dorsiflexion would be limited to 10 degrees and plantar flexion would be limited to 15 degrees. There was no ankylosis of the left ankle. The Board finds that a higher 20 percent rating is warranted as the Veteran’s overall left ankle disability more nearly approximates marked limitation of motion. Limitation of left ankle motion was demonstrated during the VA examination from 0 to 10 degrees on ankle dorsiflexion, or half of the normal 20 degrees of dorsiflexion, and 15 degrees in plantar flexion (less than half the normal 45 degrees). The Veteran was also noted to have a limp during flare-ups as a result of left ankle pain. When considering the objective evidence of limitation of motion and pain with prolonged walking, combined with the Veteran’s reports of an altered gait during flare-ups, the Board finds the Veteran’s left ankle disability more nearly approximates a higher 20 percent rating under Diagnostic Code 5271. The Board further finds that a higher rating in excess of 20 percent is not warranted. A 20 percent rating is the highest rating available under Diagnostic Code 5271. Further, there is neither lay report nor medical evidence of ankylosis of the ankle. Thus, a higher rating is not available under Diagnostic Codes 5270. TBI The Veteran is currently in receipt of a 10 percent rating for a TBI under 38 C.F.R. §4.124a, Diagnostic Code 8045. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs 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 (2017). 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.” Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI 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, should be evaluated separately rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table, even if that diagnosis is based on subjective symptoms. Emotional/behavioral dysfunction should 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, emotional/behavioral symptoms should be evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 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. Diagnostic Code 8045 stipulates that the preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. Residuals not listed here that are reported on an examination are to be evaluated 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 the evaluations for each separately rated condition should be combined under § 4.25. 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. Diagnostic Code 8045 also stipulates that the need for special monthly compensation (SMC) 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., must be considered. Diagnostic Code 8045 also states that the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. A 100-percent evaluation is to be assigned if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” the overall percentage evaluation based on the level of the highest facet is to be assigned as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The regulation provides the following example: assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. There are five notes that accompany the current version of Diagnostic Code 8045. Four apply to the instant case. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 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” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. On VA examination in April 2015, the examiner found there was a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing, corresponding to level “1” impairment. Judgement was normal, corresponding to level “0” impairment. Social interaction was routinely appropriate, corresponding to level “0” impairment. The Veteran was always oriented to person, time, place, and situation, corresponding to level “0” impairment. Motor activity was normal, corresponding to level “0” impairment. Visual spatial orientation was mildly impaired, corresponding to level “1” impairment. There were subjective symptoms that did not interfere with work, instrumental activities of daily living, family, or other close relationships, corresponding to level “0” impairment. There were no neurobehavioral effects, corresponding to level “0” impairment. Communication was manifested by the ability to communicate through spoken and written language, and comprehend spoken and written language, corresponding to level “0” impairment. Consciousness was normal. The Veteran also reported migraines, fatigue, nausea, blurred vision due to migraines, sensitivity to light, and dizziness. In an April 2015 VA psychiatric examination (conducted by the same examiner who performed the TBI examination), the examiner noted that the Veteran’s cognitive disorder was due to his TBI disability. The Veteran submitted a private psychiatric examination dated in April 2018 from Dr. Galligan. During the evaluation, Dr. Galligan indicated that the Veteran’s depressive disorder and cognitive disorder had similar, overlapping symptoms that could not be differentiated from his PTSD disability. As such, Dr. Galligan did not provide specific details as to the Veteran’s TBI disability. The remaining evidence of record does not address the specific severity of the Veteran’s TBI. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s TBI at any portion of the appeal period. The highest level of impairment found was a level “1,” which corresponds to a 10 percent rating. Level “0” impairment was found in all other parameters, corresponding to a noncompensable evaluation. The Veteran has also identified symptoms of migraine headaches with light sensitivity and a mental disorder. Service connection has been in effect for each of these residuals for the duration of the appeal period. As for headaches, the Veteran has been awarded the maximum schedular ratings of 50 percent, which adequately considered his sensitivity to light and nausea. The Veteran’s service-connected psychiatric disabilities (PTSD and MDD) adequately contemplated the Veteran’s altered sleep pattern, changes in mood, memory impairment, and other behavioral effects that impair his social and occupational functioning. As there is no legal basis upon which to award a higher schedular rating, higher ratings cannot be assigned. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered the need for special monthly compensation based on the TBI, but finds that discussion in this regard is not warranted, as the evidence does not raise issues such as loss of use of an extremity, certain sensory impairments (i. e., blind or with visual acuity of 5/200 or less in both eyes), erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), or housebound status due to the TBI. Earlier Effective Date Claims The Veteran maintains that his effective date for the grant of service connection for PTSD with MDD, migraine headaches, hiatal hernia, left ankle disability, TBI, and thoracic spine disability should be prior to the currently assigned September 11, 2013 effective date. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. 5110 (2012); 38 C.F.R. 2400 (b)(2)(i) (2017). In this case, the Veteran filed a claim for VA compensation benefits in June 2011. At that time, however, the Veteran had reenlisted into active duty service and was still on active duty at the time of June 2011 claim. In a June 2013 letter, VA notified the Veteran that he was not able to receive VA benefits while on active duty. Therefore, the Veteran was notified that his claim for VA benefits was discontinued as the Department of Defense reported that the Veteran had entered active duty on September 30, 1997 and was still serving. To resume processing of his claim, VA notified the Veteran that he could submit a copy of his DD Form 214 within one year from the date of discharge from service in order to receive the earliest effective date. On September 11, 2013, the Veteran filed a notice of disagreement (NOD) with VA’s decision to discontinue his claim. In connection with his NOD, the Veteran also submitted his DD Form 214, which noted that he separated from active duty service on August 7, 2013. The RO subsequently issues a statement of the case, continuing the discontinuance of the claim. A substantive appeal was not filed by the Veteran. The effective date of the Veteran’s claims was assigned as September 11, 2013, the date the Veteran filed his NOD as to the discontinuance of his initial claim and the date he filed his DD Form 214 (showing that he separated from service on August 7, 2013). Upon review of the evidence of record, the Board finds that the proper effective date should be August 8, 2013, the day following service separation from active duty as the Veteran’s September 2013 claim (filed as a NOD) was received within one year of service separation. Under no circumstance may the effective date for an award of VA benefits be any earlier than the day following the date of discharge from service. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). As such, the Veteran is entitled to an effective date of August 8, 2013, but no earlier. Notably, this determination appears to be consistent with the Veteran’s representative’s request as outlined in the September 2018 Brief in Support of Veteran’s Claims. REASONS FOR REMAND Hypertension The Veteran maintains that his currently diagnosed hypertension first manifested during his honorable period of active duty service (i. e., from January 1996 to November 2008) and is therefore related to service. The Board notes that, for VA purposes, hypertension is defined as diastolic blood pressure predominantly 90mm or greater, and isolated systolic hypertension means systolic blood pressure that is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Note (1). Service treatment records show that the Veteran was first diagnosed with hypertension in December 2010 (during his period of dishonorable service). However, treatment records from his honorable period of service show some indication of elevated diastolic blood pressure (BP) readings near or over 90mm. See e. g., January 2007 note (showing BP of 122/92); September 2007 note (showing BP of 170/94); December 2007 note (showing BP of 147/87). The Veteran has not been afforded a VA examination to specifically address whether his hypertension first manifested in service. As such, the Board finds that an examination and medical opinion should be obtained. Thoracic Spine The Veteran was last afforded a VA spine examination in April 2015, over three years ago. The evidence includes a November 2017 statement from Dr. Skaggs. At that time, it was noted that, since the 2015 examination, the Veteran’s service-connected spine disability “has worsened.” Worsening symptoms were noted to include pain with sitting, standing, walking, sleeping, and difficulty lifting. Although a Residual Functional Capacity Evaluation was completed, range of motion testing was not conducted by Dr. Skaggs. For these reasons, the Board finds that a new VA spine examination is warranted to assess the current severity of the Veteran’s thoracic spine disability. TDIU The issue of entitlement to a TDIU is intertwined with the claims being remanded. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to assist in determining the etiology of the Veteran’s hypertension. After reviewing all pertinent documents in the record and obtaining a complete medical history from the Veteran, the examiner should address the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that currently diagnosed hypertension was incurred in or is otherwise related to service for the period from January 1996 to November 28, 2008? A complete rationale should be provided for the opinion given. 2. Schedule the Veteran for a VA examination(s) to address the severity of his thoracic spine disability and associated neurological disorders (if any). All necessary tests should be conducted. (a.) The lumbar spine examination should include the results of joint testing for pain on both active and passive motion, in weight-bearing and non- weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). (b.) Indicate any neurological disorders associated with the spine disability, to include whether there is complete or incomplete paralysis of any peripheral nerve as well as the severity of that paralysis. 3. Then, readjudicate the claims on appeal. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel