Citation Nr: 1808849 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-11 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for basilar migraine headaches with vertigo and blurred vision (previously rated as migraine headaches). 2. Entitlement to an initial rating in excess of 50 percent prior to March 29, 2016 and in excess of 70 percent thereafter for major depressive disorder and cognitive disorder associated with basilar migraine headaches with vertigo and blurred vision (previously rated as migraine headaches). 3. Entitlement to a rating in excess of 10 percent for tinnitus. 4. Entitlement to a compensable rating prior to April 12, 2016 and in excess of 10 percent thereafter for non-allergic rhinitis (previously rated as recurrent tonsillitis). 5. Entitlement to a compensable rating prior to April 12, 2016 and in excess of 10 percent thereafter for contusion and laceration scar, forehead, residuals of head injury. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 1, 2010. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from April 1973 to April 1975. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied a rating in excess of 50 percent for service-connected basilar migraine headaches, a rating in excess of 50 percent for service-connected depressive disorder and cognitive disorder, a rating in excess of 10 percent for tinnitus, a compensable rating for recurrent tonsillitis (subsequently rated as non-allergic rhinitis), and a compensable rating for contusion and laceration scar. In March 2014, the RO issued a statement of the case (SOC) in response to the Veteran's timely filed NOD. The SOC denied increased ratings for: major depressive disorder and cognitive disorder; basilar migraine headaches with vertigo, tinnitus, recurrent tonsillitis, contusion and laceration scar. The SOC also denied service connection for blurred vision and vertigo, and it denied entitlement to a TDIU. In April 2014, the Veteran filed a VA Form 9, substantive appeal, in regard to all the issues listed in the March 2014 SOC. In regard to the issues of service connection for vertigo and blurred vision, the Board notes that in a May 2016 rating decision, the RO determined, based off of March 2014 and April 2016 VA medical opinions, that vertigo and blurred vision were symptoms of the Veteran's migraine headaches and included those issues with the Veteran's evaluation of basilar headaches. Therefore, the issues of service connection for vertigo and blurred vision are no longer on appeal. In a May 2016 rating decision, the RO granted increased ratings for: major depressive disorder and cognitive disorder from 50 percent to 70 percent effective March 29, 2016; contusion and laceration scar, forehead, residuals of head injury from 0 percent to 10 percent effective April 12, 2016; and non-allergic rhinitis (previously rated as recurrent tonsillitis) from 0 percent to 10 percent effective April 12, 2016. However, as these increases did not present a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Also, in the May 2016 rating decision, TDIU was granted, effective November 1, 2010. As such, entitlement to a TDIU prior to November 1, 2010 is presently before the Board. The title page has been updated to reflect such. See AB v. Brown, 6 Vet. App. 35 (1993); see also Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that when a TDIU claim is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits of the underlying disability). In October 2016, the Veteran's attorney submitted a letter to VA indicating that as of the date of that letter, he was withdrawing from the case as the Veteran's representative. However, the regulations regarding withdrawal of services by a representative after certification of an appeal are enumerated in 38 C.F.R. § 20.608(b)(2) (2017). The Veteran's attorney has not complied with this regulation, and the Veteran has not submitted a power of attorney in favor of another representative. Thus, the Board still recognizes J. Michael Woods as the Veteran's accredited representative. The issues of an increased rating for contusion and laceration scar and entitlement to a TDIU prior to November 1, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the entire appeal period, the Veteran's basilar migraine headaches with vertigo and blurred vision have been manifested by severe pain, nausea, vertigo, vomiting, and very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. For the appeal period prior to March 29, 2016, the Veteran's major depressive disorder and cognitive disorder were manifested by symptoms no greater than occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas have not been shown. 3. For the appeal period from March 29, 2016, the Veteran's major depressive disorder and cognitive disorder have been manifested by symptoms no greater than occupational and social impairment with deficiencies in most areas; symptoms of total occupational and social impairment have not been shown. 4. Throughout the entire appeal period, the Veteran has been in receipt of the maximum schedular rating for tinnitus. 5. For the appeal period prior to April 12, 2016, the Veteran's non-allergic rhinitis was not manifested by nasal polyps, greater than 50 percent nasal obstruction on both sides without polyps, or complete obstruction on one side. 6. For the appeal period from April 12, 2016, the Veteran's non-allergic rhinitis is manifested by greater than 50 percent obstruction of the nasal passage on both sides; polyps have not been shown. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an evaluation in excess of 50 percent for bilateral migraine headaches with vertigo and blurred vision have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124(a), Diagnostic Code 8100(2017). 2. For the appeal period prior to March 29, 2016, the criteria for an evaluation in excess of 50 percent for major depressive disorder and cognitive disorder have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Codes 9499-9434 (2017). 3. For the appeal period after March 29, 2016, the criteria for an evaluation in excess of 70 percent for major depressive disorder and cognitive disorder have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Codes 9499-9434 (2017). 4. For the entire appeal period, there is no basis for the assignment of a rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260 (2017). 5. For the appeal period prior to April 12, 2016, the criteria for a compensable rating for non-allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.10, 4.97, Diagnostic Code 6522 (2017). 6. For the appeal period from April 12, 2016, the criteria for an evaluation in excess of 10 percent for non-allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.10, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided, and neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All pertinent records have been obtained, to the extent available. The Veteran was also afforded VA examinations for his claimed disabilities. Finally, the neither the Veteran nor his representative has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155 (2017); 38 C.F.R. §§ 3.321(a), 4.1 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Basilar Migraine Headaches The Veteran's service-connected basilar migraine headaches with vertigo and blurred vision (previously rated as migraine headaches) are rated at 50 percent from November 1, 2010 under 38 C.F.R. § 4.124(a), Diagnostic Code 8100. This is the highest schedular rating available. A March 2011 VA treatment record revealed that the Veteran complained of increasing frequency of severe headaches. The Veteran had 1 to 2 headaches a week from once a month. The Veteran stated that his headaches were so severe that he had to lay down in a dark room. In September 2011, the Veteran had a VA neurology consultation. The Veteran complained of vertigo and migraines. The Veteran reported that he had headaches since he could remember, and he had tinnitus since the 1970s. The Veteran had episodes with vertigo, tinnitus that last 10 minutes to 1 hour and sometimes include nausea and vomiting. The Veteran had right sided headache that was sharp and throbbing in character. When this happened he usually laid down and closed his eyes. He had two to three episodes like that per week. In an addendum, it was noted that the Veteran had a long-standing history of migraine headaches, more incapacitating in the last 10 years, forcing him to bed for at least 1 hour; occurring twice a week. Vertigo was likely part of migraine aura and should respond to prophylaxis. In August 2012, the Veteran submitted a statement about the severity of his migraine headaches. The Veteran reported that he had migraine headaches more frequently, which he controlled by taking medications, such as Maxalt, Meloxicam, Sumatriptan, and Prochlorperazine. The Veteran reported that he had to use Hydrocodone or a Fentanyl Transdermal patch for the pain at times. The Veteran stated that once he started having signs of vertigo, he had to sit or lie down. Shortly after, the Veteran got a bad headache/migraine, which would last up to 2 to 3 hours. In October 2012, the Veteran visited the emergency department due to migraines. The Veteran stated that he had a typical migraine attack, but it would not go away after he took medicine. In November 2012, the Veteran was afforded a VA examination for headaches. It was noted that the Veteran had a diagnosis of migraines. The Veteran reported that his migraine headaches have been getting worse over the past 10 years, and he would get a nauseous feeling prior to the migraine. The Veteran had migraine headaches about 4 to 5 times a week until he started propanol several months ago. Now, the Veteran's migraine headaches are down to about 1 to 2 times a week, and usually occur on the right side associated with throbbing. Bright lights and noise aggravated the headache. The Veteran reported that he would normally go to a dark room at least twice a week and rest for his headaches. He also was on Sumatriptan as directed for his headaches. The Veteran complained that he sometimes got blurred vision associated with increased migraines. The VA examiner noted that the symptoms that the Veteran experienced with his headache pain include pain localized to one side of the head. The Veteran also experienced nausea, sensitivity to light, and sensitivity to sound. The head pain usually lasted less than 1 day. This head pain usually occurred on the right side of the head. The VA examiner noted that the Veteran had characteristic prostrating attacks of migraine headache pain that occurred more frequently than one per month over the last several months. In March 2014, a VA addendum medical opinion was obtained. The examiner opined that it was at least as likely as not that the Veteran's vertigo was a progression of his currently service-connected migraine headache condition. The Veteran was now diagnosed with basilar migraine headache. Vertigo was an aura of basilar migraine headaches. The VA examiner stated that she was unable to predict what the progression of his service-connected condition would have been in the absence of the mitral valve replacement without resort to mere speculation. In April 2016, a VA addendum medical opinion was requested to comment on n the Veteran's limitation due to his service-connected migraine headaches with aura vertigo. The VA examiner found that the Veteran had migraine headaches with vertigo. These likely were chronically aggravated by his chronic narcotics as due to his non-service connected back condition. His narcotic medication was discontinued. The VA examiner explained that the Veteran continued to have headaches. In 2011, the Veteran had about 4 headaches a month, which would require bedrest. The VA examiner stated that no information was present at this time to clarify current frequency or severity of the headaches. The Veteran's headaches were not a primary disabling condition as noted by Social Security. In October 2011, he was noted to have fairly good control of migraines with therapy. The VA examiner opined that in 2011, the Veteran would possibly miss up to 4 days of work per month due to migraine headaches. The VA examiner stated that chronic headaches were a frequent result of chronic pain medication. Headache frequency and severity often improve with the absence of chronic pain medication. Therefore, the VA examiner concluded that he was unable to verify current frequency of migraines as being equally disabling. The Veteran's condition did not impact his ability to work. In October 2016, the Veteran submitted a letter dated April 2015, from a VA physician, Dr. V.B.N. Dr. V.B.N. stated that it was remarkable to see the impact of the Veteran's migraine headaches on his quality of life and functioning. The physician noted that the Veteran provided her with portions of his migraine log that he had been keeping since 2011. The Veteran logged his most severe headaches and vertigo episodes. The physician stated that the Veteran's log revealed that more recently, in about the last year, the Veteran had been experiencing three to five severe episodes a month. His episodes were unpredictable and could impact 24 to 48 hours of functioning (can impact ability to sleep). During these episodes, the Veteran experienced severe pain, vertigo, nausea, vomiting, and a need to lie quietly in a dark room. The physician reported that the Veteran's blood pressure would rise significantly and he needed to take several medications to try to improve his symptoms. Dr. V.B.N. concluded that, given the frequency, severity and unpredictable nature of his migraine headaches, she would support the Veteran seeking unemployability. She explained that based on the Veteran's migraine log, it appeared that he would miss a minimum of 4 days of work a month due to his service-connected condition of migraine headaches. The Board notes that a 50 percent rating is the maximum available under Diagnostic Code 8100. As no higher schedular rating is available, an increased schedular rating is not warranted. AB v. Brown, 6 Vet. App. 35, 38 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In considering whether referral for extraschedular consideration is warranted, the Board finds that the degree of disability throughout the appeal period under consideration is considered to be contemplated by the rating schedule. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with his employment or frequent periods of hospitalization that would render impractical the application of the regular scheduler standards. See 38 C.F.R. § 3.321(b)(1) (2017); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's overall disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The Board acknowledges the Veteran's occasional reports of symptoms such as prostrating headaches and vertigo, as well as their resulting functional impairment, to include sleep disturbance and a limited ability to function in a work environment. However, these are all common symptoms of headaches and do not present such an exceptional disability picture that the available schedular ratings are inadequate. The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties due to basilar migraine headaches. Importantly, the Board notes that the functional effects of migraine headaches are specifically contemplated by the rating criteria. While the Veteran does have very frequent prostrating attacks, this is precisely what the applicable criteria were constructed to contemplate. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding symptoms associated with basilar migraine headaches and resulting difficulties that are not contemplated by the rating schedule. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding such an exceptional disability picture as to render the schedular criteria inadequate. Major Depressive Disorder and Cognitive Disorder The Veteran's service-connected major depressive disorder and cognitive disorder are rated at 50 percent from November 1, 2010 and 70 percent from March 29, 2016 under 38 C.F.R. § 4.130, Diagnostic Codes 9499-9434. Under these criteria, a 50 percent rating is warranted where the psychiatric condition produces occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Codes 9499-9434 (2017). A 70 percent rating is warranted where the psychiatric condition produces 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. Id. A 100 percent rating is warranted where the psychiatric condition results in 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. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21 (2017); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). However, the amended provisions do not apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the Agency of Original Jurisdiction. The instant appeal was initially certified to the Board in June 2016. Therefore, the amended version of the Schedule for Rating Disabilities is for application in the instant appeal. The Veteran is currently seeking an initial rating in excess of 50 percent prior to March 29, 2016 and in excess of 70 percent thereafter for his service-connected major depressive disorder and cognitive disorder. After careful review of the evidence, the Board finds that a rating in excess of 50 percent prior to March 29, 2016 and in excess of 70 percent thereafter is not warranted. In a June 2010 VA treatment record note, the Veteran denied current problems with his mental health. In March 2011, a VA treatment record revealed that the Veteran attended a session of cognitive-behavioral therapy for depression and stress management. The Veteran reported that he had seen huge improvements in his depression and stress since meeting earlier in March. The Veteran reported that several of the stressors that he was dealing with had resolved. The Veteran noted that his brother-in-law, who he did not get along with, moved out of the house, which alleviated much of the stress. The Veteran reported that he felt "great" and denied any current depressive symptoms. On objective observation, the psychology resident noted that the Veteran's mood was euthymic, and his affect was congruent with his mood. There was no evidence of a thought disorder or other overt psychotic processes. The psychology resident noted that the Veteran reported an absence of suicidal ideation, plan, or intent or self-harm urges. The Veteran appeared to be at low risk for harm to self or others. The psychology resident diagnosed the Veteran with recurrent remitting major depressive disorder. The Veteran was afforded a VA examination for mental disorders in September 2011. The Veteran was diagnosed with chronic adjustment disorder with anxious features. It was noted that the Veteran also had a diagnosed traumatic brain injury (TBI). The VA examiner concluded that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he had been married to his second wife for five years and they "get along well." He was married to his first wife for 28 years, but they "decided to go [their] separate ways." He had two children and he "[got] along very well with them." The VA examiner noted that the Veteran's symptoms included anxiety, chronic sleep impairment, mild memory loss, impairment of short-and long-term memory, impaired impulse control, and disorientation to time or place. The VA examiner also reported that the Veteran had other symptoms attributable to mental disorder that were not listed. The Veteran reported that he felt "somber" and struggled with organization. The Veteran reported that it took a lot of energy to get focused and stay focused. Upon mental status and behavioral observation, the VA examiner reported that the Veteran presented for evaluation as alert and oriented to person, place, and time. The VA examiner noted that the Veteran was 20 minutes late for his one-hour appointment. The VA examiner reported that the Veteran stated that his mood was generally content and he felt like he had a very good support system. The VA examiner noted that the Veteran interacted in a logical, coherent, but inhibited fashion. The observed affect was reduced in range and mildly anxious. There were no signs of thought disorder, hallucinations, or delusions. The Veteran appeared casually dressed and appropriately groomed. In April 2012, the Veteran was afforded a VA examination for neurological disorders. The VA examiner concluded that the Veteran appeared to meet the diagnostic criteria for depressive disorder not otherwise specified and cognitive disorder not otherwise specified. The VA examiner noted that the Veteran had signs of a major depressive episode, which included depressed mood most of the day or nearly every day, anhendonia, sleep disturbance, fatigue/loss of energy, and concentration difficulties. The VA examiner noted that the Veteran exhibited deficits with phonemic verbal fluency, which further suggested retrieval difficulties. In September 2012, the Veteran was afforded a VA examination for mental disorders. The Veteran was diagnosed with cognitive disorder not otherwise specified and depressive disorder not otherwise specified. The VA examine referenced a March 2012 VA examination for neurological disorders. The VA examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. The VA examiner opined that the Veteran's unemployability was not due to his cognitive and depressive disorder. The symptoms were not of such severity as to preclude the Veteran from working altogether; however, he did report mild to moderate concentration and concentration problems, which would limit his ability to learn new information, and reduce his productivity and efficiency. The VA examiner noted that the Veteran's symptoms included depressed mood, chronic sleep impairment, mild memory loss, feelings of hopelessness, and difficulty in adapting to stressful circumstances. Upon mental status and behavioral observation, the Veteran presented adequately groomed in casual dress. The Veteran appeared alert and well oriented. The Veteran had logical and coherent thought and speech processes. The Veteran endorsed depressed mood, particularly when he had a significant migraine. The Veteran indicated occasional feelings of hopelessness, but denied suicidal ideation. The Veteran stated that his sleep was disrupted due to his back pain. In June 2013, the Veteran was admitted for hospitalization due to homicidal ideation. In September 2013, the Veteran visited a VA clinic for voluntary psychiatric follow-up. The psychiatrist noted that he had a history of anxiety and depressive symptoms. The psychiatrist diagnosed the Veteran with mixed anxiety not otherwise specified (anxiety and depressive symptoms). On mental status examination, the Veteran appeared alert and oriented to person, place, and time. He was appropriately groomed and dressed. His speech was normal. The Veteran denied suicidal or homicidal ideation. There was no evidence of auditory or visual hallucinations. The Veteran's thought process was linear, logical, and goal directed. The Veteran's insight and judgment were intact. His affect was full with overtones of anxiety. The psychiatrist reported that the Veteran was to continue taking medication for his symptoms. On March 29, 2016, the Veteran was afforded a VA examination for his mental disorder. The VA examiner diagnosed the Veteran with major depressive disorder and cognitive disorder. The VA examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he felt his depression would interfere with his ability to understand and remember new instructions. The Veteran had difficulty understandings things he wrote down. The Veteran stated that he felt like he had a cloud over his head; he felt foggy and unable to concentrate. The Veteran had difficulty remembering how to do things he used to know well. The Veteran's depression interfered with his ability to tolerate and be patient with others; he overreacted to small inconveniences. His wife told him that he was rude to people. The Veteran reported that his motivation and energy were low. In general, the Veteran was sad and anxious. The Veteran stated that he came across as rude even when he did not mean to be. The Veteran stated that he was married; he had two children and six grandchildren. The Veteran loved being a grandfather. The Veteran had a really good relationship with his wife whom he had been married to for 10 years. The Veteran had three or four friends, but they only talked about once a year. He called one friend once a month. The Veteran and his wife went to church several days a week, and he felt it was a good support. The Veteran reported that he and his wife work for a local co-op twice a week. They went on a really great mission trip. The VA examiner noted that the Veteran's symptoms included depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, impairment of short and long-term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The VA examiner also noted that the Veteran neglected his personal appearance and hygiene. For example, the Veteran would forget to brush his teeth and take a shower. The Veteran also reported that he could not recall the basic age ranges of his grandchildren and could not remember how to fix cars. The Veteran only remembered to eat when he felt really hungry. The Veteran also felt anxious and worried excessively. Upon mental status and behavior observations, the VA examiner noted that the Veteran appeared alert and oriented. The VA examiner noted that the Veteran appeared to be of average intelligence. The Veteran was dressed casually and appropriately. The Veteran was in some physical distress while seated in the evaluation. The Veteran had good eye contact and his speech was normal. The Veteran described his general mood as depressed and unhappy. The Veteran had feelings of worthlessness and hopelessness. The Veteran denied suicidal and homicidal ideation. The Veteran denied delusional and paranoid ideation. In October 2016, the Veteran submitted a letter dated April 2015, from a VA physician, Dr. V.B.N. Dr. V.B.N. noted that the Veteran was first seen by her in August 2014 for an initial transfer of care psychiatric appointment. The Veteran's psychiatric diagnoses included recurrent major depressive disorder and unspecified anxiety disorder. The VA psychiatrist reported that the Veteran continued to struggle with sleep disruptions, periods of irritability, and depressed mood linked to his chronic medical conditions. After reviewing the foregoing evidence, the Board finds, first, that for the appeal period prior to March 29, 2016, a rating in excess of 50 percent is not warranted. For this appeal period, the evidence of record does not support symptoms of occupational and social impairment with deficiencies in most areas. The Veteran maintained adequate hygiene and appearance throughout the appeal period prior to March 29, 2016. The Veteran also had a good relationship with his wife and children. In March 2011, the Veteran reported that he had been making huge improvement in his depression and stress, and he reported that several of the stressors that he had been dealing with had resolved. Although the Veteran had an instance of hospitalization due to homicidal ideation, for the most part the Veteran has denied suicidal and homicidal ideation. Furthermore, the Veteran did not have auditory or visual hallucinations. The Veteran's insight and judgment were noted to be intact. During a September 2011 VA examination, the Veteran reported the was generally content and felt like he had a very good support system. The September 2012 VA examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity, which most closely approximates the level of symptomatology contemplated by the 50 percent rating assigned. See 38 C.F.R. § 4.130, Diagnostic Codes 9499-9434 (2017). In short, although the Veteran's major depressive disorder and cognitive disorder is productive of occupational and social impairment consistent with a 50 percent rating, the criteria for a higher 70 percent rating have not been shown for the appeal period prior to March 29, 2016. For the appeal period on and after March 29, 2016, a rating in excess of 70 percent is not warranted for the Veteran's service-connected major depressive disorder and cognitive disorder. The Veteran's symptoms include depressed mood, anxiety, panic attacks, sleep impairment, memory impairment, and disturbances of motivation and mood. In a March 2016 VA examination, the Veteran reported that he had trouble remembering the age ranges of his grandchildren and only remembered to eat when he felt really hungry. Although it was noted that the Veteran neglected his personal appearance and hygiene, during the examination, he was dressed casually and appropriately. The Veteran denied suicidal and homicidal ideation; therefore, he was not in persistent danger of hurting himself or others. The Veteran did not have delusions. Further, the Veteran reported that he and his wife worked twice a week at a local co-op, and they went on a mission trip. Based on this evidence, it has not been shown that the Veteran has total occupational and social impairment due to his mental disorders. In short, although the Veteran's major depressive disorder and cognitive disorder is productive of occupational and social impairment consistent with a 70 percent rating, the criteria for a higher 100 percent rating have not been shown for the appeal period on and after March 29, 2016. Tinnitus The Veteran's service-connected tinnitus is rated at 10 percent from November 1, 2010 under 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran is seeking a rating in excess of 10 percent for his service-connected tinnitus. Under Diagnostic Code 6260, a 10 percent maximum rating is for recurrent tinnitus. 38 C.F.R. § 4.87 (2017). Note (2) further explains that the Board must assign only a single rating for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing United States Supreme Court precedent, the Federal Circuit explained in Smith that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Id. Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the United States Court of Appeals for Veterans Claims had erred in not deferring to VA's interpretation. Id. The Veteran was afforded VA examinations in December 2010, March 2011, and September 2012, which all confirmed that the Veteran had tinnitus. In view of the foregoing, the Board concludes that the regulations preclude a schedular rating in excess of a single 10 percent rating for tinnitus; therefore, the appeal for a disability rating greater than 10 percent for tinnitus must be denied under Diagnostic Code 6260, Note 2. 38 C.F.R. § 4.87 (2017). As disposition of this issue is based on the law and not the facts of the case, the issue must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Non-Allergic Rhinitis The Veteran's service-connected non-allergic rhinitis (previously rated as recurrent tonsillitis) is currently rated at 0 percent prior to April 12, 2016, and at 10 percent thereafter, under Diagnostic Code 6522, 38 C.F.R. § 4.97. Under that diagnostic code, a 10 percent evaluation is assigned for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. Diagnostic Code 6522, 38 C.F.R. § 4.97 (2017). A 30 percent evaluation is warranted for allergic or vasomotor rhinitis with polyps. Id. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). The Veteran is seeking a compensable rating prior to April 12, 2016 and a rating in excess of 10 percent thereafter for his service-connected non-allergic rhinitis. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable rating prior to April 12, 2016 or a rating in excess of 10 percent thereafter. As an initial matter, the Board notes that the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. §§ 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017); see also Hazan v. Gober, 10 Vet. App. 511 (1997). In this case, the Veteran's request for an increased rating for his non-allergic rhinitis was received in July 2012. A review of the Veteran's medical records for the year preceding that date do not show that, at any point within that one year period, it was objectively shown or factually ascertainable that an increase in the Veteran's disability occurred. Therefore, the focus of this decision will be on the body of evidence added to the record subsequent to the Veteran's July 2012 claim for increase. In November 2012, the Veteran was afforded a VA examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx. The Veteran was diagnosed with laryngeal stenosis. It was noted that the Veteran was service-connected for laryngeal stenosis secondary to recurrent tonsillitis hypertrophy. The Veteran reported that he had his tonsils removed after military service and denied any breathing or swallowing difficulties since then. The VA examiner noted that the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Also, the Veteran did not have complete obstruction of one side due to rhinitis. The Veteran did not have permanent hypertrophy of the nasal turbinates. Also, the Veteran did not have any nasal polyps. The VA examiner reported that the Veteran did not have any granulomatous conditions. The Veteran did not have chronic laryngitis. The VA examiner noted that the Veteran did not have at least 50 percent obstruction of the nasal passage on both sides due to traumatic septal deviation. Also the Veteran did not have complete obstruction on one side due to traumatic septal deviation. The Veteran did not have any tumors or neoplasms. The VA examiner concluded that the Veteran's condition did not impact his ability to work. On April 12, 2016, the Veteran was afforded a VA examination for his rhinitis. The VA examiner noted that the Veteran had been diagnosed with non-allergic rhinitis and recurrent tonsillitis. The Veteran stated that while he was in service, he had multiple episodes of tonsillitis, and he eventually had his tonsils removed. The Veteran reported that over the past 18 months, nothing had changed. The Veteran did not have any acute infection requiring antibiotic, but he did have constant symptoms. The VA examiner noted that the Veteran's current symptoms included rhinnorhea, nasal congestion, sinus pressure (occasional), and sensation of nose "swelling shut." The Veteran's current treatment included saline spray/rinse, occasional sudafed OTC, and occasional antihistamine. The Veteran did not take any medications regularly. The VA examiner reported that the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. However, the Veteran did not have complete obstruction on the right or left side due to rhinitis. Also, the VA examiner noted that the Veteran did not have permanent hypertrophy of the nasal turbinates. There were not any nasal polyps. The Veteran did not have any granulomatous rhinitis, rhinoscleroma, Wegener's granulomatosis, lethal midline granuloma, or any other granulomatous infection. The Veteran's condition did not impact his ability to work. The VA examiner noted that the Veteran's previous diagnosis had changed, and his new diagnosis was non-allergic rhinitis. The new diagnosis was a progression of the previous diagnosis. After reviewing the foregoing evidence, the Board finds, first, that the criteria for a compensable rating under Diagnostic Code 6522 have not been met for the appeal period prior to April 12, 2016. In November 2012, the VA examiner noted that the Veteran did not have polyps or any granulomatous conditions. Neither did the Veteran have greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Thus, a compensable rating is not warranted for the service-connected non-allergic rhinitis prior to April 12, 2016. Additionally, the Board finds that the criteria for a rating in excess of 10 percent under Diagnostic Code 6522 have not been met for the appeal period from April 12, 2016. On the Veteran's April 2016 VA examination, the VA examiner noted that the Veteran's current symptoms included rhinnorhea, nasal congestion, sinus pressure (occasional), and sensation of nose "swelling shut." The Veteran did not have any polyps or granulomatous conditions. The VA examiner concluded that the Veteran had greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. Based on the foregoing, the Board concludes that a rating in excess of 10 percent for the Veteran's service-connected non-allergic rhinitis is not warranted for the appeal period from April 12, 2016. ORDER An initial rating in excess of 50 percent for basilar migraine headaches with vertigo and blurred vision is denied. An initial rating in excess of 50 percent prior to March 29, 2016 for major depressive disorder and cognitive disorder is denied. A rating in excess of 70 percent from March 29, 2016 for major depressive disorder and cognitive disorder is denied. A rating in excess of 10 percent for tinnitus is denied. A compensable rating prior to April 12, 2016 for non-allergic rhinitis is denied. A rating in excess of 10 percent from April 12, 2016 for non-allergic rhinitis is denied. REMAND Scar The Veteran's service-connected contusion and laceration scar, forehead, residuals of head injury is rated at 0 percent prior to April 12, 2016, and at 10 percent thereafter under 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017). The Veteran is seeking a compensable rating prior to April 12, 2016 and a rating in excess of 10 percent thereafter for his service-connected contusion and laceration scar. In November 2012, the Veteran was afforded a VA examination for his scar. The VA examiner noted that color photographs of the Veteran's scar were provided. In April 2016, the Veteran was afforded another VA examination for his scar. However, it was noted that photographs of the Veteran's scar were not available. A review of the record does not show that the Veteran's color photographs from his November 2012 VA examination have been associated with the claims file. Particularly, Note (3) under 38 C.F.R. § 4.118, Diagnostic Code 7800, provides that the unretouched color photographs should be taken into consideration when evaluating under these criteria. Therefore, on remand, the RO should obtain the color photographs referenced in the November 2012 VA examination and associate them with the claims file. TDIU Finally, the Board must defer consideration of the issue of entitlement to a TDIU, as it is inextricably intertwined with the issue of entitlement to an increased rating for contusion and laceration scar. See also Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. Specifically, the RO should obtain the color photographs referenced in the Veteran's 2012 VA examination for his scar and associate them with the claims file. 2. After completing the above development, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim (including the claim for a TDIU). If the issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs