Citation Nr: 18160790
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-07 522
DATE:	December 27, 2018
ORDER
New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for bilateral polycystic kidney disease is denied.
New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for fractured teeth for compensation purposes is denied.
The reduction to 40 percent being improper, restoration of a 70 percent rating for service connected traumatic brain injury (TBI) with motor neuron disease, effective May 9, 2014, is granted.
Entitlement to an increased rating greater than 20 percent for lumbar spine spondylosis with herniated nucleus pulposus is denied.
Entitlement to an increased rating greater than 10 percent for right knee patellofemoral pain syndrome is denied.
Entitlement to a separate 10 percent disability rating, but no higher, for right knee instability is granted.
Entitlement to an increased rating greater than 10 percent for left knee patellofemoral pain syndrome is denied.

Entitlement to a compensable disability rating for left ear hearing loss is denied.
Entitlement to an increased rating greater than 10 percent for deviated septum, status post nasal fractures, is denied.
Entitlement to an increased rating greater than 70 percent for TBI with motor neuron disease is denied.
Entitlement to an increased rating greater than 10 percent for left paranasal facial numbness, status post left orbital fracture, is denied.
Entitlement to an initial disability rating greater than 20 percent for right upper extremity weakness is denied.
Entitlement to an initial increased rating greater than 20 percent for right lower extremity radiculopathy is denied.
Entitlement to an initial increased rating greater than 20 percent for left lower extremity radiculopathy is denied.
Entitlement to an increased rating of 70 percent, but no higher, for major depressive disorder prior to May 9, 2014 is granted.
Entitlement to an increased rating greater than 70 percent for major depressive disorder from May 9, 2014 is denied.
Entitlement to an effective date of November 21, 2013, but no earlier, for the increased rating of 70 percent for depression is granted.
Entitlement to an effective date earlier than January 28, 2014 for the increased rating of 10 percent for deviated septum is denied.
Entitlement to an effective date earlier than January 28, 2014 for the increased rating of 10 percent left paranasal facial numbness, status post left orbital fracture is denied.
Entitlement to an effective date earlier than January 28, 2014 for the increased rating of 20 percent for lumbar spine spondylosis is denied.
Entitlement to an effective date earlier than January 28, 2014 for the award of service connection for left lower extremity radiculopathy is denied.
Entitlement to an effective date earlier than January 28, 2014 for the award of service connection for right lower extremity radiculopathy is denied.
Entitlement to an effective date earlier than January 28, 2014 for the award of service connection for right upper extremity weakness is denied.
Entitlement to TDIU as of November 21, 2013, but no earlier, is granted.
Entitlement to special monthly compensation (SMC) at the (s) rate as of November 21, 2013, but no earlier, is granted.
FINDINGS OF FACT
1. A July 2009 rating decision by the Agency of Original Jurisdiction (AOJ) denied service connection for kidney disease and fractured teeth.  The AOJ also granted service connection for bilateral patellofemoral pain syndrome and assigned a 10 percent rating, non-compensable left ear sensorineural hearing loss, and non-compensable deviated septum from June 1, 2009.  The Veteran did not appeal or submit new and material evidence within a year the rating decision was mailed.
2. A July 2009 rating decision by the AOJ granted service connection for TBI with motor neuron disease and assigned a 70 percent disability rating, depression and assigned a 50 percent disability rating, lumbar spine spondylosis and assigned a 10 percent disability rating, and non-compensable left paranasal facial numbness from June 1, 2009.  While the Veteran filed a notice of disagreement, he did not file a substantive appeal to the January 2011 statement of the case as to these issues.
3. As to the petitions to reopen his kidney disease and fractured teeth, evidence added to the record since the July 2009 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims.
4. The preponderance of the evidence does not support a finding that the Veteran’s TBI has improved under the ordinary conditions of life and work.
5. The Veteran’s lumbar spine disability was not manifested by ankylosis of the thoracolumbar spine or forward flexion to 30 degrees.
6. The Veteran’s right knee limitation of motion was not manifested by limitation of flexion to 45 degrees or less or extension to 10 degrees or less.
7. The Veteran’s left knee limitation of motion was not manifested by limitation of flexion to 45 degrees or less or extension to 10 degrees or less.
8. The Veteran’s right knee disability was manifested by slight instability.  It was not manifested by moderate instability.
9. Audiometric examination corresponds to no greater than Level I hearing loss in the left ear.
10. The Veteran’s deviated septum is manifested by complete obstruction on the left side due to traumatic septal deviation.
11. The Veteran’s TBI is not manifested by total impairment.
12. The Veteran’s paranasal facial numbness is not manifested by at least severe, incomplete paralysis.  It is also not manifested by complete paralysis.
13. The Veteran’s right upper extremity weakness is not manifested by at least moderate, incomplete paralysis.  It is also not manifested by complete paralysis.
14. The Veteran’s right lower extremity radiculopathy is not manifested by at least moderately severe, incomplete paralysis.  It is also not manifested by complete paralysis.
15. The Veteran’s left lower extremity radiculopathy is not manifested by at least moderately severe, incomplete paralysis.  It is also not manifested by complete paralysis.
16. Prior to May 9, 2014, the Veteran’s depression was not manifested by total social and occupational impairment.
17. From May 9, 2014, the Veteran’s depression was not manifested by total social and occupational impairment.
18. It is factually ascertainable that the Veteran’s depression increased in severity to warrant a 70 percent disability rating on November 21, 2013, but no earlier.
19. It is not factually ascertainable that the Veteran’s deviated septum increased in severity to warrant a 10 percent disability rating prior to January 28, 2014.
20.  It is not factually ascertainable that the Veteran’s left paranasal facial numbness increased in severity to warrant a 10 percent disability rating prior to January 28, 2014.
21. It is not factually ascertainable that the Veteran’s lumbar spine spondylosis increased in severity to warrant a 20 percent disability rating prior to January 28, 2014.
22. The Veteran initially filed a service connection claim for left lower extremity radiculopathy on January 28, 2014, and service connection was awarded in the decision on appeal from January 28, 2014, the date of claim.
23. The Veteran initially filed a service connection claim for right lower extremity radiculopathy on January 28, 2014, and service connection was awarded in the decision on appeal from January 28, 2014, the date of claim.
24. The Veteran initially filed a service connection claim for right upper extremity radiculopathy on January 28, 2014, and service connection was awarded in the decision on appeal from January 28, 2014, the date of claim.
25. It is factually ascertainable that the Veteran was not able to obtain or retain substantially gainful employment due solely to his service-connected depression from November 21, 2013.
26. Based on the Board’s award of TDIU due solely to the Veteran’s depression, the Veteran had a single service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of 60 percent as of November 21, 2013.
CONCLUSIONS OF LAW
1. The June 2009 rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2017). 
2. New and material evidence has not been received to reopen the claims of entitlement to service connection for kidney disease or fractured teeth.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 
3. The reduction in the Veteran’s disability evaluation from 70 to 40 percent for TBI was improper and the 70 percent rating is restored, effective May 9, 2014. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.130, Diagnostic Code 8045 (2017). 
4. The criteria for an increased rating greater than 20 percent for lumbar spine disability have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017).
5. The criteria for an increased rating greater than 10 percent for right knee patellofemoral pain syndrome have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017).
6. The criteria for a separate rating of 10 percent, but no higher, for right knee instability have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017).
7. The criteria for an increased rating greater than 10 percent for left knee patellofemoral pain syndrome have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017).
8. The criteria for an initial compensable disability rating for left ear hearing loss have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012).  38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100 (2017).
9. The criteria for a disability rating greater than 10 percent for deviated septum have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6502 (2017).
10. The criteria for an increased rating greater than 70 percent for TBI have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045 (2017).
11. The criteria for an increased rating greater than 10 percent for left paranasal facial numbness have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8205 (2017).
12. The criteria for an initial disability rating greater than 20 percent for right upper extremity weakness have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8514 (2017).
13. The criteria for an initial disability rating greater than 20 percent for right lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017).
14. The criteria for an initial disability rating greater than 20 percent for left lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017).
15. The criteria for an increased rating of 70 percent, but not higher, for depression prior to May 9, 2014 have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017).
16. The criteria for an increased rating greater than 70 percent for depression as of May 9, 2014 have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017).
17. The criteria for an effective date of November 21, 2013, but no earlier, for an increased rating of 70 percent for depression have been met.  38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017).
18. The criteria for an effective date earlier than January 28, 2014 for an increased rating of 10 percent for deviated septum have not been met.  38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017).
19. The criteria for an effective date earlier than January 28, 2014 for an increased rating of 10 percent for left paranasal facial numbness have not been met.  38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017).
20.  The criteria for an effective date earlier than January 28, 2014 for an increased rating of 20 percent for lumbar spine spondylosis have not been met.  38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017).
21. The criteria for an effective date earlier than January 28, 2014 for the award of service connection for left lower extremity radiculopathy have not been met.  38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017).  
22. The criteria for an effective date earlier than January 28, 2014 for the award of service connection for right lower extremity radiculopathy have not been met.  38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017).
23. The criteria for an effective date earlier than January 28, 2014 for the award of service connection for right upper extremity radiculopathy have not been met.  38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017).
24. The criteria for entitlement to TDIU from November 21, 2013, but no earlier, are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017).
25. The criteria for SMC at the housebound rate from November 21, 2013, but no earlier, have been met.  38 U.S.C. §§ 1114(s), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350(i) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from May 1987 to May 2009.
The Veteran appeals multiple findings from an August 2014 rating decision by the agency of original jurisdiction (AOJ).  Specifically, the AOJ denied his petition to reopen service connection for kidney disease and dental for compensation purposes.  It also reduced his 70 percent rating for TBI with motor neuron disease to 40 percent effective May 9, 2014.  He appeals the reduction and wants a higher disability rating for TBI.
The AOJ also granted service connection for bilateral lower extremity radiculopathy and right upper extremity weakness, assigning 20 percent disability ratings for each extremity effective January 28, 2014.  The Veteran appeals both the ratings and effective dates assigned.
The AOJ increased the Veteran’s rating for depression from 50 percent to 70 percent effective May 9, 2014.  The AOJ also increased his lumbar spine rating from 10 percent to 20 percent, left paranasal facial numbness from 0 to 10 percent, and deviated septum from 0 to 10 percent, all effective January 28, 2014.  The Veteran appeals both the rating and effective dates assigned.
Further, the AOJ continued his 10 percent disability rating for each knee, and non-compensable rating for left ear sensorineural hearing loss.  The Veteran appeals the ratings.
When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  
New and Material Evidence
Generally, a denied claim in an unappealed AOJ decision may not later be reopened and allowed.  38 U.S.C. § 7105.  The statutory exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition. 
New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court of Appeals for Veterans Claims (Court) held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist.
Additionally, new and material evidence submitted before the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).
1. Kidney Disease
Here, the AOJ denied the Veteran’s service connection claim for bilateral polycystic kidney disease in a July 2009 rating decision.  While recognizing that the Veteran had bilateral polycystic kidney disease, the AOJ denied the claim because the disease is considered a congenital or developmental defect which is unrelated to military service.  As the Veteran did not appeal the July 2009 rating decision or submit new and material evidence within a year to keep his claim pending, the July 2009 rating decision became final.  
At the time of the July 2009 rating decision, the record consisted of the Veteran’s extensive service treatment records, his compensation application, and comprehensive VA examinations conducted in January 2009 and February 2009.
Evidence added since the July 2009 rating decision includes VA treatment records, VA examination reports, and lay statements not relating to the Veteran’s kidney claim.  While some records indicate that he continues to have polycystic kidney disease, they do not speak as to whether the Veteran’s disability could worsen or if another disease was superimposed over it.  Importantly, the Board notes that the Veteran does not state at any time that his kidney disease is anything other than a congenital defect.  
While new in the sense that these records were not previously present in the claims file, none of it is material.  This is so because none of the evidence, whether expert or non-expert, establishes that the Veteran’s currently diagnosed kidney disease is anything other than a congenital or developmental defect, which cannot be service connected unless there is a superimposed disability over it.  Cox v. Brown, 5 Vet. App. 95, 99 (1993).
After review of all of the evidence, the Board finds that new and material evidence to reopen the previously denied claim of service connection for bilateral polycystic kidney disease has not been received; there is no benefit of the doubt to be resolved; and the preponderance of the evidence is against reopening the claim. 
2. Fractured Teeth
Here, the AOJ denied the Veteran’s dental claim for compensation purposes in a July 2009 rating decision because fractured teeth are not considered disabling for compensation purposes.  As the Veteran did not appeal the July 2009 rating decision or submit new and material evidence within a year to keep his claim pending, the July 2009 rating decision became final.
At the time of the July 2009 rating decision, the record consisted of the Veteran’s extensive service treatment records, his compensation application, and comprehensive VA examinations conducted in January 2009 and February 2009.
Evidence added since the July 2009 rating decision includes VA treatment records, private treatment records, VA examination reports, and lay statements not relating to the Veteran’s dental claim at all.  While new in the sense that these records were not previously present in the claims file, none of it is material.  This is so because none of the evidence, whether expert or non-expert, establishes that the Veteran has a compensable dental disability.  Cox v. Brown, 5 Vet. App. 95, 99 (1993).
After review of all of the evidence, the Board finds that new and material evidence to reopen the previously denied claim of service connection for a dental disability has not been received; there is no benefit of the doubt to be resolved; and the preponderance of the evidence is against reopening the claim. 
Rating Reduction
In an August 2014 rating decision, the AOJ decreased the Veteran’s disability rating from 70 to 40 percent.  However, as the reduction did not reduce the Veteran’s overall compensation, the procedural requirements under 38 C.F.R. § 3.105(e) do not apply.  Hence, a rating reduction is proper when the evidence shows improvement in the Veteran’s TBI under the ordinary conditions of life and work.
The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  38 C.F.R. § 3.344(a).  However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c).  In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating.  See 38 C.F.R. § 3.344(c). 
In the present case, the Veteran’s 70 percent rating for TBI had been in effect for less than five years before the August 2014 rating decision reduced it to 40 percent effective May 9, 2014.  As a result, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply.  Nevertheless, the Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the [Veteran’s] disability.”  Brown v. Brown, 5 Vet. App. 413, 420 (1993).  A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.”  See Brown, 5 Vet. App. at 421. 
Importantly, and critical to this case, the Court in Brown concluded that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.”  Id. at 421.
Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  Medical and non-medical indicators of improvement may be considered.  See Faust v. West, 13 Vet. App. 342, 349 (2000).
Having reviewed the evidence of record, the Board finds that restoration of the 70 percent rating for the Veteran’s TBI, effective May 9, 2014, is warranted.
Generally, residuals of TBI are rated 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 TBI 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, 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.  VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.”
VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified.”  Further, VA is to evaluate physical (including neurological) dysfunction under an appropriate diagnostic code.  
The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” addresses 10 facets of a 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 5th level, the highest level of impairment, labeled “total.”  Not every facet has every level of severity.  The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling.  A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets.  If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.  For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet.
Importantly, there may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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.
Here, the Veteran was granted a 70 percent disability rating effective June 1, 2009 because he was assigned a 3 for the motor activity facet; specifically, a VA clinician found his motor activity moderately decreased due to apraxia.  See, e.g., February 2009 VA examination report.  This was the only facet for which he received a 3 upon examination.  Five years later, the Veteran was afforded another VA examination.  There, the VA clinician determined the Veteran’s motor activity was normal most of the time, but mildly slowed due to apraxia.   See May 2014 VA examination report.  
However, the clinician did not explain why or how his motor activity decreased, and similarly found three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships.  Id.  Further, the VA clinician found one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others.  In February 2009, this facet merited a 2 while it merits a 3 as of the date of the examination.
Therefore, as a predicate matter, the Board finds that the Veteran’s ability to function under the ordinary conditions of life and work has not improved.  The Veteran’s symptoms remained consistent between his February 2009 and May 2014 VA examinations.  Further, the May 2014 VA clinician did not explain why or how the Veteran’s motor activity improved.  The Board also does not find impermissible pyramiding; here, the Veteran’s symptoms under memory, judgment, and neurobehavioral effects are rated under his depression, and the rating is restored based on the motor activity facet.
As noted above, in reduction cases, the burden of proof lies with VA to show that the Veteran’s disability has undergone an observable improvement.  To be precise, the burden is on VA to establish by a preponderance of evidence that the rating reduction was warranted.  See Brown v. Brown, 5 Vet. App. 413, 421 (1993).  As highly probative evidence indicates the Veteran’s condition has not improved, the Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his TBI was therefore improper.  The 70 percent rating for TBI is therefore restored effective May 9, 2014.
Increased Rating
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  
When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required.  See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).   
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  
Importantly, the evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. 

1. Musculoskeletal Claims
When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). 
Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45 (2017).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 
A. Lumbar Spine
Here, the Veteran claims that his lumbar spine spondylosis with herniated nucleus pulposus is more severe than his current disability rating would indicate.  He filed his claim in January 2014.
Under 38 C.F.R. § 4.71a, all spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine.  If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation.  Here, as the Veteran does not have IVDS, the Veteran’s lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine.  See May 2014 VA examination report.
The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows:  
Unfavorable ankylosis of the entire spine - 100 percent disabling. 
Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. 
Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. 
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. 
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (2). 
The Veteran does not have ankylosis of the thoracolumbar spine.  See May 2014 VA examination report.  His thoracolumbar flexion, even after repetitive use, was to 80 degrees.  Id.  The Board has also considered whether higher ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination.  See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017).  Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it results in additional functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). 
Here, the Veteran did not report flare-ups.  See May 2014 VA examination report.  Further, a VA clinician determined that the Veteran did not have additional limitation in range of motion of the back following repetitive use testing.  Though the Veteran exhibited less movement than normal, weakened movement, and pain on movement, these limitations did not manifest as additional functional loss.  Id.  The VA examination also noted no additional range of motion loss due to pain or use or during flare-ups beyond that was documented in the examination.  Id.  Therefore, the Board finds the Veteran’s back disability more closely approximates the 20 percent disability criteria under Diagnostic Code 5242.  
Based upon the law of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate.  Since, however, the Veteran’s symptoms have remained constant at 20 percent levels for his lumbar spine disability, staged ratings are not warranted.
All potentially applicable Diagnostic Codes have been considered.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The Board finds the evidence of record more closely approximates the criteria for a 20 percent rating.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Therefore, the Board finds that the criteria for an increased rating greater than 20 percent for lumbar spine disability are not met.  See Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.102. 
B. Bilateral Knees
The Veteran contends that his bilateral knee disability is more severe than his current disability ratings would indicate.  He filed his claim in January 2014.
Knee disabilities are rated under Diagnostic Codes 5256 through 5263 of 38 C.F.R. § 4.71a.  Diagnostic Code 5256 addresses ankylosis of the knee.  Diagnostic Code 5257 addresses recurrent subluxation or lateral instability.  Diagnostic Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint.  Diagnostic Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage.  Diagnostic Code 5260 addresses limitation of motion on flexion while Diagnostic Code 5261 addresses limitation of motion on extension.  Diagnostic Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion.  Diagnostic Code 5263 addresses genu recurvatum.  38 C.F.R. § 4.71a. 
B1. Limitation of Motion
Limitation of motion for the knee is rated under 38 C.F.R. § 4.71a under Diagnostic Codes 5260 and 5261.
Diagnostic Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.
Similarly, Diagnostic Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.
Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees.  See 38 C.F.R. § 4.71, Plate II.
When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Diagnostic Codes.  38 C.F.R. § 4.59 is one such regulation.  In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court noted that § 4.59 “explain[s] how to arrive at proper evaluations under the DCs appearing in the disability rating schedule.”  The provisions of § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Diagnostic Code.  Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint.  See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016).
While § 4.59 adds flexibility to the rating schedule, it is also limited by the terms of the appropriate Diagnostic Code for the joint.  Thus, if the appropriate Diagnostic Code for the joint does not provide a compensable rating, a claimant is not entitled to a minimum rating.  Id. at 481 (“Section 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating”). Sowers highlights the importance of the Diagnostic Code under which the Veteran is rated because § 4.59 operates within the parameters of the Diagnostic Code. 
Where the record contains evidence of an actually painful, unstable, or malaligned joint or periarticular region, § 4.59 is potentially applicable.  See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).
Here, the Veteran has been assigned at least 10 percent based on painful motion for each knee.  See May 2014 VA examination report.  As a result, he already receives at least a 10 percent disability rating for painful motion as contemplated by Sowers.
Nevertheless, throughout the appeal period, the Veteran is not entitled to an initial disability rating greater than 10 percent under Diagnostic Code 5260 or 5261.  Upon VA examination in May 2014, the Veteran’s right knee extension was normal and flexion was to 70 degrees even after repetitive use.  The Veteran’s left knee extension was normal and flexion was to 80 degrees even after repetitive use. 
The Board has also considered whether higher ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination.  See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017).  Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it results in additional functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). 
Here, the Veteran did not report flare-ups.  See May 2014 VA examination report.  Further, a VA clinician determined that the Veteran did not have additional limitation in range of motion of either knee following repetitive use testing.  Though the Veteran exhibited less movement than normal, weakened movement, and pain on movement, these limitations did not manifest as additional functional loss.  Id.  The VA examination also noted no additional range of motion loss due to pain or use or during flare-ups beyond which was documented in the examination.  Id.  
Therefore, even considering whether the Veteran exhibited additional functional loss, his right knee limitation of motion does not approximate limitation of flexion to 45 degrees or extension to 10 degrees.  Further, the Veteran’s left knee limitation of motion does not approximate limitation of flexion to 45 degrees or extension to 10 degrees.
B2. Instability
Diagnostic Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6.
The Veteran’s right knee is weaker than his left, and buckles.  See May 2014 VA examination report.  In contrast, his left knee exhibits normal strength and the Veteran has not described instability in that knee.  Further, the Veteran did not show instability upon VA stability testing in May 2014, does not have patellar subluxation/dislocation, and does not use an assistive device.  Nevertheless, the Court in English v. Wilkie suggested that “nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence.”  No. 17-2083 2018 U.S. App. Vet. Claims LEXIS 1464, at *10-11 (Nov. 1, 2018).  As the Veteran’s right knee buckles and is weaker than the left, the Board finds the Veteran has slight right knee instability.  It is not moderate because he can still stand and walk without an assistive device, and has not complained of multiple falls.  
In contrast, as the Veteran did not describe left knee instability and did not show as much upon VA testing, he is not entitled to a separate rating for left knee instability.
B3. Other Diagnostic Codes
The evidentiary record does not suggest impairment of semilunar cartilage, tibia and fibula or genu recurvatum.  As such, separate disability ratings under Diagnostic Codes 5258, 5259, 5262 and 5263 are not warranted.  Further, the Veteran has not exhibited ankylosis of either knee.  Hence, a separate rating under Diagnostic Code 5256 is not warranted.
All potentially applicable Diagnostic Codes have been considered.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The Board finds the evidence of record more closely approximates the criteria for a 10 percent rating under right and left knee limitation of flexion and a 10 percent rating, but no higher, under right knee instability.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 
3. Left Ear Hearing Loss
Here, the Veteran contends that his left ear hearing loss is more severe than his assigned disability rating.  He filed his claim in January 2014.  
Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85, Tables VI, VIA, VII.  To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness.  Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores.  The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment.  Id.  
Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
On the authorized audiological evaluation in May 2014, pure tone thresholds, in decibels, were as follows:
  	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	 10	15 	5 	10 	10 
LEFT	 15	20 	20 	60 	50 

The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 10 decibels in the right ear and 38 decibels in the left ear.  The speech recognition scores on the Maryland CNC word list were 98 percent for the right ear, and 100 percent for the left ear.
Applying the test results of the May 2014 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the Veteran’s service-connected left ear.  As the Veteran is not service-connected for the right ear, he is assigned a Roman Numeral designation for hearing impairment of Level I.  See 38 C.F.R. § 4.85(f).  Applying the Roman numeric designations to Table VII, the result is a 0 percent rating for the Veteran’s service-connected left ear hearing loss.
There are no other audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes.  Accordingly, the evidence of record does not support a compensable disability rating for left ear hearing loss.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).
4. Deviated Septum
The Veteran’s deviated nasal septum is rated as 10 percent disabling, which is the maximum schedular evaluation under Diagnostic Code 6502 for a traumatic deviation of the nasal septum.  38 C.F.R. § 4.97.  Here, the Veteran exhibits complete obstruction on the left side due to traumatic septal deviation.  See May 2014 VA examination report.  The Veteran has not reported, and his VA treatment records do not indicate, any other manifestations or functional effects related to his deviated nasal septum.  As there is no basis upon which to award an increased rating greater than 10 percent, the Veteran’s appeal is denied.  
5. TBI with Motor Neuron Disease
Generally, residuals of TBI are rated 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 TBI 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, 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.  VA is to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.”
VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified.”  Further, VA is to evaluate physical (including neurological) dysfunction under an appropriate diagnostic code.  
The table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified” addresses 10 facets of a 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 5th level, the highest level of impairment, labeled “total.”  Not every facet has every level of severity.  The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling.  A 100 percent evaluation is assigned if “total” is the level of evaluation for one or more facets.  If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.  For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet.
Importantly, there may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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.
Pursuant to the Order above, the Veteran’s 70 percent rating for TBI is restored.  Further, the AOJ attributed his symptoms comprising memory, attention, concentration, executive functions, judgment, and neurobehavioral facets to the Veteran’s service-connected depression.  See February 2016 statement of the case (SOC).  Thus, attributing any of the symptoms comprising those facets under the TBI diagnostic code would constitute impermissible pyramiding under 38 C.F.R. § 4.14.  As a result, he would need to show total impairment in orientation, motor activity, visual spatial orientation, communication, or consciousness to warrant a 100 percent rating under Diagnostic Code 8045.
As the Veteran has not been consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation, he does not warrant a 100 percent rating under the orientation facet.  Similarly, as the Veteran has not shown motor activity severely decreased due to apraxia, he does not warrant 100 percent rating under the motor activity facet.  See May 2014 VA examination report.
As to visual spatial orientation, the record does not show that the Veteran is unable to touch or name his own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment.  Thus, he is not entitled to a 100 percent rating under the visual spatial orientation facet.  Further, he is not in a persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma.  As a result, a total rating for the consciousness facet is not warranted.
Lastly, the Veteran is able to communicate by spoken and written language, and to comprehend spoken and written language.  See May 2014 VA examination report.
The predicate element in assigning several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  Assigning an increased rating or considering symptoms involving the Veteran’s depression would violate the rules prohibiting pyramiding under Diagnostic Code 8045 as it would compensate the Veteran twice for the same symptomatology.  38 C.F.R. § 4.14.  
Therefore, the Board finds that an increased rating under Diagnostic Code 8045 is not warranted.  
6. Left Paranasal Facial Numbness
The Veteran began having facial numbness in the left lateral nose and malar cheek since a surgery on his nose following the nasal and orbital fracture.  It feels like someone “put ice on it in summer and hot in winter.”  See May 2014 VA examination report.
Under Diagnostic Code 8205, moderate incomplete paralysis of the 5th cranial nerve warrants a 10 percent disability rating, severe incomplete paralysis warrants a 30 percent disability rating, and complete paralysis warrants a 50 percent rating.   See 38 C.F.R. § 4.124a, Diagnostic Code 8205.
The impairment level depends on relative degree of sensory manifestation or motor loss.  See 38 C.F.R. § 4.124a, Diagnostic Code 8205, Note.
Based on the evidence, the Board finds that the Veteran is entitled to an initial disability rating of 10 percent for his left paranasal facial numbness, as there is no indication of complete or severe, incomplete paralysis.
Here, the Veteran exhibited the following mid face cranial nerve symptoms: (1) moderate constant pain; (2) severe intermittent pain; (3) moderate paresthesias and/or dysesthesias; (4) moderate numbness; (5) mild difficulty chewing; and (6) mild increased salivation.  See May 2014 VA examination report.  His muscle strength was normal, but he had decreased sensation in his left mid face.  Further, the Veteran has not lost his sense of smell.  See June 2014 VA examination report.  However, he had partial loss of sense of taste.  Id. 
As the Veteran exhibited moderate symptoms, does not have impaired sense of smell, and has partial loss of taste, he has not experienced severe incomplete paralysis or complete paralysis symptoms.  Id.
Thus, the Board finds that the criteria for an initial disability rating greater than 10 percent for left paranasal facial numbness, status post left orbital fracture are not met.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102.
7. Right Upper Extremity Weakness
The Veteran’s service-connected right upper extremity weakness is currently evaluated under Diagnostic Code 8514.  The Veteran is right-hand dominant per May 2014 VA examination.
Under Diagnostic Code 8514, mild incomplete paralysis of the radial nerve warrants a 20 percent disability rating, moderate incomplete paralysis warrants a 30 percent disability rating, severe incomplete paralysis warrants a 50 percent rating, and complete paralysis warrants a 70 percent disability rating.  See 38 C.F.R. § 4.124a, Diagnostic Code 8514.
Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.”  38 C.F.R. § 4.6.
Based on the evidence, the Board finds that the Veteran is entitled to an initial disability rating of 20 percent for his right upper extremity weakness, as there is no indication of complete or moderate, incomplete paralysis.
Upon VA examination in May 2014, the Veteran reported mild right arm muscle weakness.  Specifically, his right elbow and wrist flexion and extension, as well as grip and pinch, exhibited less than normal strength.  See May 2014 VA examination report.  However, his right biceps, triceps, and brachioradialis exhibited normal reflexes.  As a result, the Veteran has not experienced moderate incomplete paralysis or complete paralysis symptoms.  Id.
Thus, the Board finds that the criteria for an initial disability rating greater than 20 percent for right upper extremity weakness are not met.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102.
8. Bilateral Lower Extremity Radiculopathy
The Veteran’s service-connected bilateral lower extremity radiculopathy is currently evaluated under Diagnostic Code 8520.
Under Diagnostic Code 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis with marked muscle atrophy warrants a 60 percent disability rating.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Complete paralysis of the sciatic nerve is when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, and warrants an 80 percent rating.  Id.  
Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.”  38 C.F.R. § 4.6.
Based on the evidence, the Board finds that the Veteran is entitled to an initial disability rating of 20 percent each for his bilateral lower extremity radiculopathy, as there is no indication of complete or at least moderately severe, incomplete paralysis.
Upon VA examination in May 2014, the Veteran did not report constant pain.  However, he reported moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in both lower extremities.  Further, he does not require use of any assistive device as a normal mode of locomotion.  As a result, the Veteran has not experienced marked muscle atrophy or moderately severe bilateral lower extremity symptoms.  See, e.g., May 2014 VA examination report.
Thus, the Board finds that the criteria for an initial disability rating greater than 20 percent for bilateral lower extremity radiculopathy are not met.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102.
9. Major Depressive Disorder
Here, the Veteran contends that his depression is more severe than his current disability rating.  He filed his claim in January 2014.
The Veteran’s depression is rated under 38 C.F.R. §4.130, Diagnostic Code 9434.  
A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  38 C.F.R. §4.130, Diagnostic Code 9434.
A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126. 
Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013).
Taking into account all relevant evidence, the Board finds that a disability rating of 100 percent for service-connected depression is not warranted.  Rather, the Veteran exhibits occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood.
Upon examination in May 2014, a VA psychologist found the Veteran suffered from the following symptoms: (1) depressed mood; (2) anxiety; (3) panic attacks that occur weekly or less often; (4) mild memory loss; (5) impairment of short and long-term memory; (6) flattened affect; (7) disturbances of motivation and mood; (8) difficulty in establishing and maintaining effective work and social relationships; and (9) difficulty in adapting to stressful circumstances, including work or a worklike setting.  See May 2014 VA examination report.  As a result, the VA psychologist opined that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  Id.
Nevertheless, the Veteran has not exhibited total social impairment.  He has been married for at least 22 years and has a good relationship with his wife.  See May 2014 VA examination report.  Further, the has a few friends from the Wounded Warrior program that he sometimes visits.  However, he keeps to himself and interacts as little as possible with people.  See May 2014 VA examination report.  The Veteran also does not have persistent delusions or hallucinations.  Further, he has stated he is not a persistent danger of hurting himself or others, and remembers his own name. 
While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a rating higher than 70 percent.  Hence, the criteria for a finding of a 100 percent evaluation are not met.
Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate.  Since, however, the Veteran’s symptoms remained constant at 70 percent levels for his depression, staged ratings are not warranted.  
Thus, the evidence is in equipoise and the Board finds that the criteria for an increased rating of 70 percent, but not higher, for depression prior to May 9, 2014 are met.  The criteria for an increased rating greater than 70 percent from May 9, 2014 are not met.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. 
Effective Date
Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2017).  However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date.  38 C.F.R. § 3.400(o)(2).    
During the pendency of the appeal, the definition of what constitutes a valid claim has changed.  For the purposes of this case, a claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2014).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).  
1. Entitlement to an effective date earlier than May 9, 2014 for the increased rating of 70 percent for depression
Here, as stated above, a July 2009 rating decision granted service connection for depression at 50 percent effective June 1, 2009.  While the Veteran submitted a NOD within a year of the rating decision, the Veteran did not submit a timely substantive appeal after the AOJ issued a statement of the case SOC in January 2011.  Hence, the July 2009 rating decision became final.
The Veteran’s representative argues that the Veteran’s symptoms warranted a 70 percent rating because of the impairment expressed in a January 2009 VA examination report.  See December 2016 representative statement.  However, the July 2009 rating decision and January 2011 statement of the case considered this evidence when it adjudicated the claim and assigned the effective date for service connection.  Further, the July 2009 rating decision became final, and the Veteran did not file a formal or informal claim for increase until January 28, 2014.  Importantly, the Veteran does not allege CUE in the July 2009 rating decision.  Hence, the date of claim for the depression increased rating claim on appeal is January 28, 2014.
Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran’s depression symptoms warranted an increase from 50 percent to 70 percent within a year of January 28, 2014.  As stated above, depression is rated under 38 C.F.R. §4.130, Diagnostic Code 9434.  A 50 percent rating is warranted for occupational and social impairment with reduced reliability, while a 70 percent rating is warranted for occupational and social impairment with deficiencies is most areas.  38 C.F.R. §4.130, Diagnostic Code 9434.
Here, the Board finds the Veteran’s psychological symptomatology worsened as of November 21, 2013.  On that date, upon Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) standardized testing, a pathologist found the Veteran exhibited “extremely low cognitive function. . . . which negatively affect his success in ADL’s and for which he is unable to compensate.”  See November 2013 VA treatment record.  Thus, it is factually ascertainable that the Veteran’s psychological symptoms increased from November 21, 2013.
Therefore, the Board finds the criteria for an effective date of November 21, 2013, but no earlier, for a 70 percent depression disability rating is warranted.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102.
2. Entitlement to an effective date earlier than January 28, 2014 for the increased rating of 10 percent for deviated septum
Here, as stated above, a July 2009 rating decision granted service connection for deviated septum, status post nasal fractures and assigned a non-compensable rating effective June 1, 2009.  The Veteran did not submit a NOD or new and material evidence within a year of the decision.  Hence, the July 2009 rating decision became final.
After the July 2009 rating decision became final, the Veteran did not file a formal or informal claim for increase until January 28, 2014.  Importantly, the Veteran does not allege CUE in the July 2009 rating decision.  Hence, the date of claim for the deviated septum increased rating claim on appeal is January 28, 2014.
Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran’s deviated septum symptoms warranted an increase from 0 to 10 percent within a year of January 28, 2014. 
The Veteran’s deviated nasal septum is rated as 10 percent disabling, which is the maximum schedular evaluation under Diagnostic Code 6502 for a traumatic deviation of the nasal septum.  38 C.F.R. § 4.97.  Here, the Veteran exhibits complete obstruction on the left side due to traumatic septal deviation.  See May 2014 VA examination report.  However, neither the Veteran nor the evidentiary record suggest how or why it was factually ascertainable that the Veteran’s deviated septum symptoms increased to 10 percent from 0 percent disabling within a year of January 28, 2014.  
Therefore, the Board finds the criteria for an effective date earlier than January 28, 2014 for a 10 percent deviated septum disability rating is not warranted.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102.
3. Entitlement to an effective date earlier than January 28, 2014 for the increased rating of 10 percent for left paranasal facial numbness, status post left orbital fracture
Here, as stated above, a July 2009 rating decision granted service connection for left paranasal facial numbness, status post left orbital fracture and assigned a non-compensable rating effective June 1, 2009.  While the Veteran submitted a notice of disagreement NOD within a year of the rating decision, the Veteran did not submit a timely substantive appeal after the AOJ issued a statement of the case SOC in January 2011.  Hence, the July 2009 rating decision became final.
After the July 2009 rating decision became final, the Veteran did not file a formal or informal claim for increase until January 28, 2014.  Importantly, the Veteran does not allege CUE in the July 2009 rating decision.  Hence, the date of claim for the left paranasal facial numbness, status post left orbital fracture increased rating claim on appeal is January 28, 2014.
Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran’s left facial symptoms warranted an increase from 0 to 10 percent within a year of January 28, 2014. 
Under Diagnostic Code 8205, moderate incomplete paralysis of the 5th cranial nerve warrants a 10 percent disability rating.  See 38 C.F.R. § 4.124a, Diagnostic Code 8205.  The impairment level depends on relative degree of sensory manifestation or motor loss.  See 38 C.F.R. § 4.124a, Diagnostic Code 8205, Note.  However, neither the Veteran nor the evidentiary record suggest how or why it was factually ascertainable that the Veteran’s left facial symptoms increased to 10 percent from 0 percent disabling within a year of January 28, 2014.  
Therefore, the Board finds the criteria for an effective date earlier than January 28, 2014 for a 10 percent left paranasal facial numbness, status post left orbital fracture disability rating is not warranted.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102.
4. Entitlement to an effective date earlier than January 28, 2014 for the increased rating of 20 percent for lumbar spine spondylosis
Here, as stated above, a July 2009 rating decision granted service connection for lumbar spine spondylosis with herniated nucleus pulposus and assigned a 10 percent rating effective June 1, 2009.  While the Veteran submitted a NOD within a year of the rating decision, the Veteran did not submit a timely substantive appeal after the AOJ issued an SOC in January 2011.  Hence, the July 2009 rating decision became final.
After the July 2009 rating decision became final, the Veteran did not file a formal or informal claim for increase until January 28, 2014.  Importantly, the Veteran does not allege CUE in the July 2009 rating decision.  Hence, the date of claim for the lumbar spine spondylosis with herniated nucleus pulposus increased rating claim on appeal is January 28, 2014.
Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran’s lumbar spine symptoms warranted an increase from 10 to 20 percent within a year of January 28, 2014. 
Under Diagnostic Code 5242, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent disability rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.
However, neither the Veteran nor the evidentiary record suggest how or why it was factually ascertainable that the Veteran’s lower back symptoms increased to 20 percent from 10 percent disabling within a year of January 28, 2014.  
Therefore, the Board finds the criteria for an effective date earlier than January 28, 2014 for a 20 percent lumbar spine spondylosis with herniated nucleus pulposus disability rating is not warranted.  See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102.
5. Entitlement to an effective date earlier than January 28, 2014 for the award of service connection for bilateral lower extremity radiculopathy and right upper extremity weakness 
The Veteran seeks an effective date earlier than January 28, 2014 for the grant of service connection for bilateral lower extremity radiculopathy and right upper extremity weakness.  Here, a review of the claim file shows that the Veteran did not file a formal or informal application for service connection for bilateral lower extremity radiculopathy and right upper extremity weakness prior to the claim received on January 28, 2014.  As such, the AOJ has assigned the earliest possible effective date provided by law and an earlier effective date is not warranted.
TDIU
Even before adjudicating any issue on appeal, the Veteran has been rated at a schedular 100 percent combined.  The Court has recognized that a 100 percent rating under the rating schedule indicates that a Veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446 (1994).  Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis.   See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).
However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot.  VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to SMC under 38 U.S.C. § 1114.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).   Specifically, SMC may be warranted if a Veteran has a 100 percent disability rating for a “single disability,” and TDIU for a sole disability may satisfy this requirement.  See Bradley, 22 Vet. App. at 292 (analyzing 38 U.S.C. § 1114(s)).  Thus, if any of the Veteran’s service-connected disabilities alone rendered him unable to obtain and sustain employment, he may be entitled to SMC.
The Board notes that the Veteran has not been able to maintain gainful employment since he was discharged from the military in May 2009.  See May 2014 VA examination report.  As of May 2014, he had been unemployed for approximately one and a half years.  Id.
Here, the evidentiary record shows that the Veteran cannot work solely due to his service-connected depression.  First, the Board recognizes that because of depression, one or more neurobehavioral effects “interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety or self or other.”  See May 2014 VA examination report.  At that examination, a VA clinician determined the Veteran has anxiety around other people and socially isolates himself.  He has occasional panic attacks, and feels prone to an exaggerated startle response constantly.  Id.  The Veteran also has cognitive and memory difficulties.  
Nevertheless, the VA clinician found there was significant overlap between the symptoms of the Veteran’s mental health conditions and the psychosocial sequelae associated with TBI.  As such, “it is not possible to ascertain the extent to which each condition individually contributes to his current impairment without resorting to speculation.”  See May 2014 VA examination report.  Nevertheless, as stated above, VA chose to attribute his psychological symptoms to depression as it maximized benefits to the Veteran.
The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity.  See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).  The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  
Here, the psychological symptoms make it difficult to establish work relationships, cause concentration lapses, hinder his ability to effectively complete tasks, and would cause frequent absences and work disruptions.  As such, the Board finds the Veteran and his medical treatment providers credible as to his functional limitations attributable to his depression.  
Further, TDIU is considered a rating and not a disability.  See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010).  As such, the assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation.  
Here, the Board finds the Veteran’s psychological symptomatology worsened as of November 21, 2013.  On that date, upon Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) standardized testing, a pathologist found the Veteran exhibited “extremely low cognitive function . . . . which negatively affect his success in ADL’s and for which he is unable to compensate.”  See November 2013 VA treatment record.  Thus, it is factually ascertainable that the Veteran’s psychological symptoms increased from November 21, 2013 and he is unemployable due to that service-connected disability from that date.
Therefore, the Board finds that the Veteran’s service-connected depression at least as likely as not prevent him from obtaining and maintaining gainful employment.   Accordingly, resolving all doubt in his favor, the criteria for TDIU have been met as of November 21, 2013, and the claim is granted.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990).

SMC
The Board must consider entitlement to SMC when raised.  Akles v. Derwinski, 1 Vet. App. 118 (1991).  The issue of entitlement to SMC at the “statutory housebound” rate under the provisions of 38 U.S.C. § 1114(s) has been raised by the record.
SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  
When a veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling.  See 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)).





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Pursuant to the Order above, the Board has awarded TDIU based on the Veteran’s depression alone, and the Veteran had additional service-connected disabilities independently ratable at a combined rating of more than 60 percent since November 21, 2013.  Accordingly, as both elements of entitlement to SMC at the (s) rate have been shown, the Board finds entitlement to SMC at the statutory housebound (s) rate is granted from November 21, 2013.

 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Salazar, Associate Counsel