Citation Nr: 19121007 Decision Date: 03/21/19 Archive Date: 03/21/19 DOCKET NO. 17-28 542A DATE: March 21, 2019 ORDER The application to reopen the claim for service connection for a low back disability is granted. Entitlement to a 100 percent disability rating for service-connected posttraumatic stress disorder (PTSD) is granted from July 21, 2015, subject to the regulations governing payment of monetary awards. Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. Entitlement to a compensable disability rating for service-connected residuals of a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left lower leg disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for residuals of additional disability resulting from VA care, specifically a hernia operation, is remanded. FINDINGS OF FACT 1. Service connection for a lower back disability was previously denied in an unappealed June 2012 rating decision; evidence that was not previously before decision makers at that time and that raises a reasonable possibility of substantiating the claim was subsequently received. 2. Throughout the appeal period, the Veteran’s PTSD has been manifested by symptoms consistent with total occupational and social impairment. 3. Throughout the appeal period, the Veteran has had no worse than Level I hearing loss in his right ear and no worse than Level II hearing loss in his left ear, and the evidence of record has not demonstrated an exceptional pattern of hearing loss in either ear during the appeal period. 4. Throughout the appeal period, the evidence of record demonstrates that the Veteran does not experience residuals of a TBI except moderate non-prostrating headaches that do not interfere with his daily life. CONCLUSIONS OF LAW 1. The criteria for the petition to reopen the claim of service connection for a lower back condition have been met. 38 U.S.C. §§ 501, 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), (c), 3.160(d), 20.200, 20.302, 20.1103. 2. Throughout the appeal period, the criteria for entitlement to a 100 percent disability for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85. 4. The criteria for entitlement to a compensable disability rating for residuals of a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1967 to October 1970 and from August 1978 to November 1978. New and Material 1. The application to reopen the previously denied claim for service connection for a low back disability Previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already 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. Id. When determining whether the claim should be reopened, the credibility of the newly received evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly received evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran has previously claimed service connection for a lower back disability. This claim was most recently denied in a June 2012 rating decision. Neither new and material evidence nor a notice of disagreement (NOD) was received within a year of that decision. Therefore, the June 2012 rating decision is final and binding based on the evidence of record at that time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), (b), 3.156(a), (b), 3.160(d), 20.1103. Since the June 2012 rating decision, additional evidence has been received, including a May 2016 VA examination. This evidence establishes a reasonable probability of substantiating the Veteran’s claim, at least when combined with VA assistance. Therefore, the Veteran’s claim for service connection for a low back disability is reopened, and to this extent only, the claim is granted. Increased Rating Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD The Veteran’s acquired psychiatric disorder was previously rated as an anxiety disorder. The Veteran submitted an intent to file a claim for compensation on July 21, 2015. This submission was acknowledged by VA on the same day. The Veteran then filed a completed claim on July 31, 2015, in which he sought service connection for PTSD. The resulting rating decision, in June 2016, recharacterized his acquired psychiatric condition as PTSD, but did not alter his disability rating of 50 percent. VA regulations provide that all mental health conditions are rated under the same General Rating for Mental Disorders. 38 C.F.R. § 4.130. Mental disorders are evaluated as 50 percent disabling when they cause 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. Id. A 70 percent rating is assigned where a mental disorder causes 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the various levels of rating criteria in § 4.130 are non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the symptoms listed at the various levels of rating criteria in § 4.130 are deemed by VA to be representative of the corresponding levels of occupational and social deficiency. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Thus, the fact that a claimant has a symptom listed in one evaluation level without an analogue at lower evaluation levels indicates that the presence of that symptom alone may be cause for finding that the claimant’s condition meets that particular level of disability. Id. Because the Veteran submitted an intent to file a compensation claim on July 21, 2015, the Board has examined the evidence received in the year prior to that date. 38 U.S.C. §§ 501, 5101; 38 C.F.R. §§ 3.155(b), 3.400(o). However, no evidence regarding the Veteran’s psychiatric condition was received during the year preceding the Veteran’s intent to file was submitted. After his intent to file and subsequent claim was received, VA obtained his VA treatment records. In July 2015, VA treatment records were initially encouraging as to the Veteran’s mental health condition. His providers noted decreasing anxiety and irritability than had previously been observed or reported, but the Veteran had limited insight and impulsive judgment. In October 2015 VA treatment records, the Veteran was reporting symptoms of depression, mood swings, anxiety, lack of interest, occasional nightmares, flashbacks, and problems with anger. His providers noted that the Veteran was hyperverbal and exhibited a tired mood and affect. The Veteran was noted to deny hallucinations at this time. In December 2015, the Veteran reported having “dreams” that popped into his head regarding hs wartime experience. The Veteran described experiencing these “dreams” as occurring in the middle of the afternoon, wherein he would hear people shouting. These events happened approximately monthly and lasted from a couple of hours to a couple of days. The Veteran also complained of mood swings, anxiety, manic symptoms (such as excessive cleaning or exercise), and a long history of suicidal thoughts, while denying any current suicidal ideation. In February 2016, the Veteran underwent a VA examination. The Veteran reported feeling depressed, bored, and frequent thoughts about the Vietnam war on a daily basis. He also reported sometimes being away for 72 hours at a time and then crashing, with the most recent episode like this being in the summer of 2015 (approximately the time of his application for increased benefits) and corresponding to running out of medications. The Veteran denied bad dreams. He reported using television or sounds to distract himself from thinking about Vietnam. He discussed having an intense reaction when he encountered people of Asian descent. He expressed feelings of anger and guilt, an inability to feel physically safe, hyperawareness, an increased startle reflex, and described feeling that it would be better if he left this world. The examiner noted the Veteran to be anxious, but without any other significant symptoms during the examination. The examiner listed only the symptoms of anxiety and chronic sleep impairment on the examination report and characterized the Veteran has having occupational and social impairment due to mild or transient symptoms. The examiner also provided a diagnosis of PTSD. In August 2016, VA treatment records documented that the Veteran reported vague suicidal thoughts, feeling overwhelmed, anxiety, irritability, and feared that he may “explode.” The Veteran checked himself into the hospital for three days at the end of August 2016 reporting suicidal ideation without a suicidal attempt, worsening depression over the last year and a half, being tearful, feeling down and overwhelmed. He reported being found by his caretaker naked in the basement of his residence, crying and without memory of how he came to be there. He also had limited insight and judgment and reported seeing ghost faces and hearing the voices of military friends. VA treatment records in September 2016 document that the Veteran was guarded, reported irritability, anger without clear provocation, had a constricted affect, and he continued to express fear that he would “explode” or hit someone. He once again entered the hospital for his psychiatric condition for a few days at the end of September. His providers noted auditory and visual hallucinations, including hearing the voices of his deceased mother and sister. These hallucinations of the Veteran’s deceased family members were reportedly asking the Veteran to join them. The Veteran stated that he was unwilling to commit suicide. The Veteran also reported increased anger and that he had been threatening others. In VA treatment records from October 2016 document symptoms of increasing irritability, aggressiveness, agitation, tearfulness, punching walls, throwing dishes, refusing to eat, homicidal ideation, restricted affect, anxiety, dysphoric mood, auditory hallucinations, flashbacks, and the Veteran’s remaining family and friends reported being afraid of the Veteran’s behavior such that they no longer wanted to be around him. The Board notes that the Veteran has a history of serious criminality, including a homicide, from well before the date of this appeal that may also have contributed to the fear that the Veteran’s friends and family were reported to have of him. Letters from the Veteran’s brothers that were received along with the Veteran’s representative’s submissions to the Board in September 2017 make repeated reference to this history. VA treatment notes in December 2016 note similar symptoms including aggressiveness, depression, poor social judgment, restricted affect, anxiety, dysphoric mood, and auditory hallucinations. VA treatment notes from April 2017 document symptoms of anger, a desire to hurt others without a particular target, homicidal thoughts, and irritability. The Veteran was admitted to the hospital for a few days again due to irritability, anger, poor sleep, poor insight, and increased anxiety that the Veteran feared may lead him to commit an act of violence. VA treatment notes from May 2017 document that the Veteran reported feeling like he might “snap,” passive suicidal ideation, dysphoric mood, seeing visions and hearing voices related to his Vietnam experience. He continued to report similar symptoms and hallucinations in June 2017 and July 2017. In September 2018, the Veteran’s representative compiled his VA treatment notes documenting the symptoms described in the preceding paragraphs along with letters from the Veteran’s brothers describing their concerns about the Veteran’s psychiatric condition. The representative asserted that the Veteran’s psychiatric condition entitled him to an increased evaluation for PTSD and that his psychiatric symptoms were so severe that the prevented him from working. After a review of this evidence, the Board finds that the Veteran’s symptoms meet the criteria for a 100 percent evaluation. While there have been times where the Veteran appears to have fewer symptoms or gaps where he has not sought treatment, his VA treatment records clearly document persistent hallucinations in August 2016, some of which encouraged him to commit acts of self-harm, even suicide. The Veteran has been serially admitted to the hospital for psychiatric care due to suicidal ideation, his fear that he may “snap” or “explode” or otherwise become violent, fears which appear credible given his history of serious violent behavior attested to by the record and by his family. While treatment records do not clearly indicate these very serious symptoms, especially the hallucinations, prior to August 2016, the Board notes that the Veteran’s description of his “dreams” in December 2015 appear to share many characteristics with the hallucinations described in later treatment notes. Notably, while the treatment note documents that the Veteran described them as “dreams,” the note does not indicate that he said they happened during sleep. Instead, the Veteran describes them as popping into his head (sometimes in the afternoon) and lasting several hours or days, during which time he heard sounds of people shouting and other sounds associated with his experience in Vietnam. Resolving reasonable doubt in favor of the Veteran’s claim, the Board finds that the Veteran was describing symptoms similar to those that were later identified as hallucinations. As persistent delusions or hallucinations are a feature of the criteria for a 100 percent disability rating, the Board finds that a 100 percent rating is warranted based on these symptoms described, along with symptoms so severe that the Veteran received at least 4 admissions for in-patient treatment in a year for serious symptoms involving the thoughts of suicide, or credible thoughts of harming others, or simply grossly inappropriate behavior such as “snapping” or “exploding.” 38 U.S.C. § 1155; 38 C.F.R. §§ 4.130, DC 9411. Similarly, the Board finds that, in resolving all reasonable doubt in favor of the Veteran’s claim, the evidence of record meets the criteria for a 100 percent rating for PTSD throughout the appeal period. In that December 2015 VA treatment note, the Veteran described symptoms substantially similar to those that were later identified as hallucinations occurring monthly. This description would seem to indicate that these symptoms were an on-going concern for the Veteran for at least the preceding few months so that he could offer this assessment of their frequency. In light of this, the Board finds that it is reasonable to understand them as having existed throughout the appeal period, which began approximately 5 months prior to the date of the December 2015 VA treatment note first describing these symptoms. Finally, the Board recognizes that the Veteran’s representative asserted entitlement to both an increased rating for PTSD, including a claim of individual unemployability due to his psychiatric condition, in September 2018. However, since the Veteran will now be in receipt of a 100 percent disability for the disability that assertedly renders him unemployable, further discussion of entitlement to a total disability rating due to individual unemployability based solely on this condition is not necessary. 3. Entitlement to a compensable disability rating for service-connected bilateral hearing loss Disability ratings for hearing impairment are governed by 38 C.F.R. § 4.85. Generally, and under the circumstances presented by this case, hearing impairment is rated using two different types of hearing tests. Id. First, a veteran’s pure tone audiometric thresholds in each ear are measured in decibels across 4 frequencies (1000, 2000, 3000, and 4000 Hertz) and the average of those scores (rounded to the nearest whole number) is calculated. Id. Second, a veteran’s speech discrimination ability (rendered as a percentage) is determined using the Maryland CNC test. Id. Once the average pure tone thresholds and speech discrimination scores are determined for each ear, the values of each ear individually are combined using Table VI to assign a Roman numeral I-XI. Id. Once each ear is assigned a Roman numeral, the Roman numerals assigned are combined using Table VII to determine a veteran’s disability rating. Id. Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear is assigned a Roman Numeral designation of I. Id. The only time that the Veteran received an examination that complies with these criteria during or proximate to the appeal period was at the August 2017 VA examination. At that time, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 40 35 LEFT 25 30 25 85 95 The average pure tone threshold across the relevant frequencies was 33 decibels in the right ear and 59 decibels in the left. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear. The Veteran did not report any functional effects on the ordinary conditions of daily life or symptoms other than hearing loss. Using Table VI, these results provide a Level I hearing loss designation in the right ear and a Level II hearing loss designation in the left ear. 38 C.F.R. § 4.85. Using Table VII, VA assigns a non-compensable (0 percent) rating where the better ear is assigned a Level I and the poorer ear a Level II. Id. As the Veteran did not report any additional symptoms or effects on his daily life beyond hearing loss related to this disability, it is appropriate to rate his hearing loss disability through the mechanical application of the rating formula. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board also notes that VA regulations provide for alternative means of rating hearing loss where pure tone thresholds are 55 decibels or greater at each of the values from 1000 to 4000 Hz or where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. However, the Veteran’s hearing loss does not meet either of these exceptional patterns of hearing loss. Based on the evidence described above, the Board finds that the evidence of record preponderates against the Veteran’s claim for a rating in excess of 0 percent for bilateral hearing loss during the appeal period. 4. Entitlement to a compensable disability rating for service-connected residuals of a TBI The Veteran’s residuals of a TBI are rated under Diagnostic Code 8045. 38 U.S.C. § 1155, 38 C.F.R. § 4.124a. Under this diagnostic code, there are three main areas of dysfunction which each may require rating. They are cognitive, emotional/behavioral, and physical. Cognitive impairment and subjective symptoms are rated based on the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified (Table). The exception is that any diagnosed cognitively impairing condition, even if based on such symptoms, is rated under the most appropriate Diagnostic Code. Examples include migraine headaches and Meniere’s disease. When a mental disorder has been diagnosed, it is rated under the General Rating Formula for Mental Disorders (General Rating Formula). When there is no diagnosis, rating is pursuant to the Table. Each physically impairing condition is rated under the most appropriate Diagnostic Code. Special monthly compensation (SMC) finally must be considered. Examples include the loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment) and being housebound. As set forth in the Table, there are 10 facets of a TBI. Not every facet has every level of impairment, which are a low of 0, 1, 2, 3, and a high of total. The maximum rating of 100 percent is assigned if total is the level for one or more facets. If not, the rating is assigned based on the highest facet. Level 1 equates with a rating of 10 percent. Level 2 equates with a rating of 40 percent, while level 3 warrants a 70 percent rating. The symptoms listed, like with the General Rating Formula, are merely examples. Note (2). They need not be present before a particular rating is assigned. Id. Pyramiding between conditions rated pursuant to the Table and those rated pursuant to another Diagnostic Code is to be avoided. Note (1). Pyramiding is rating the same symptoms more than once. 38 C.F.R. § 4.14. If symptoms of two or more conditions cannot be separated, only one rating is assigned under whichever source best assesses the impairment due to them. One facet of a TBI is memory, attention, concentration, and executive functions. Level 0 is assigned for no complaints in there regards. Level 1 is assigned for mild loss without objective evidence on testing. Examples of mild memory loss are having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words or often misplacing items. Level 2 is assigned for objective evidence of testing of mild impairment resulting in mild functional impairment. Level 3 is assigned for objective evidence on testing of moderate impairment resulting in moderate functional impairment. The total level is assigned when there is objective evidence on testing of severe impairment resulting in severe functional impairment. Under the judgment facet, level 1 is for normal judgment. Level 1 is for mild impairment when there is occasional inability to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision for complex or unfamiliar decisions. Level 2 is for moderate impairment where this inability is usually present for such decisions, though there is little difficulty with simple decisions. Level 3 is for moderately severe impairment where this inability is occasional even for routine and familiar decisions. The total level is for severe impairment where this inability is usually present even for such decisions. An example is being unable to decide appropriate clothing for current weather conditions or to judge when to avoid dangerous situations or activities. Level 0 on the social interaction facet is assigned for routine appropriateness. Level 1 is assigned for occasional inappropriateness, while level 2 is for frequent inappropriateness. Level 3 is for inappropriateness most or all of the time. Under the orientation facet, always being oriented on all four aspects (person, time, place, and situation) is level 0. Being occasionally disoriented to one of the four aspects is level 1. Level 2 is being occasionally disorientated to two of these aspects or often disoriented to one. Level 3 is often being disoriented to two or more aspects, while the total level is consistently being so disoriented. Under the motor activity (with intact motor and sensory system) facet, level 0 is assigned when such is normal. Level 1 is assigned when it is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). Level 2 is assigned when it is mildly decreased or with moderate slowing due to apraxia. Level 3 is assigned when there is a moderate decrease due to apraxia, while the total level is assigned where there is a severe decrease due to apraxia. Pursuant to the visual spatial orientation facet, level 0 is the normal state. Level 1 is for mild impairment like getting lost in unfamiliar surroundings, having difficulty reading maps or following directions, but is able to use assistive devices such as a global positioning system (GPS). Level 2 is for moderate impairment like usually getting lost in unfamiliar surroundings, having difficulty reading maps, following directions, and judging distances, and having difficulty using assistive devices such as GPS. Level 3 is for moderately severe impairment like getting lost even in familiar surroundings and being unable to use assistive devices such as a GPS. The total level is for severe impairment (inability to touch or name own body parts when asked, to identify the relative position in space of two different objects, or to find the way from one room to another in a familiar environment). Under the subjective symptoms facet, level 0 is assigned for when such symptoms do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships. Examples are mild or occasional headaches and mild anxiety. Level 1 is assigned for three or more such symptoms that mildly interfere with work, with instrumental activities of daily living, or with work, family or other close relationships. Examples include daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. Level 2 is assigned for three or more symptoms that moderately interfere with the aforementioned. Examples include marked fatigability, blurred or double visions, and headaches requiring rest periods during most days. Instrumental activities of daily living include meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. Note (3). Next is the neurobehavioral effects facet. Irritability, impulsivity, unpredictability, lack of motivation, verbal or physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability are considered neurobehavioral effects. Any of these neurobehavioral effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction that some of the other effects. Level 0 is for one or more which do not interfere with workplace interaction or social interaction. Level 1 is for one or more which occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. Level 2 is for one or more which frequently interfere with workplace interaction, social interaction, or both but do not preclude them. Level 3 is for one or more which interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Per the communication facet, level 0 is assigned when there is the ability to communicate by spoken and written language (expressive communication) and to comprehend both. Level 1 is assigned when comprehension, expression, or both of either spoken language or written language is only occasionally impaired. Communication of complex ideas is still possible. Level 2 is assigned when there is an inability to communicate by or to comprehend spoken language, written language, or both more than occasionally but less than half of the time. Communication of complex ideas is still generally possible. Level 3 is assigned when there is an inability to communicate by or to comprehend spoken language, written language, or both at least half of the time but not all of the time. Gestures or other alternative modes of communication may be relied upon. Communication of basic needs is still possible. The total level is assigned when there is complete inability to communicate or to comprehend spoken language, written language, or both. Communication of basic needs is not possible. The consciousness facet provides for the assignment of the total level for a persistently altered state of consciousness. Examples include a vegetative state, a minimally responsive state, and a coma. A VA opinion was requested in June 2016. At that time, after reviewing the Veteran’s medical history, including a March 2011 TBI examination. At that examination, the Veteran had not reported complaints related to the impairment of memory, attention, concentration, or executive functions. His judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. His motor activity was normal. Subjective symptoms did not interfere with his work, his instrumental activities of daily living, or work, family, or other close relationships. He was always able to communicate by spoken and written language, and to comprehend speech and writing directed to him. His consciousness was normal. The March 2011 examination indicated that there were no likely residuals beyond mild tension headaches, and that his anxiety and impaired sleep were attributable to his psychiatric condition alone. The June 2016 examiner agreed. In March 2017, the Veteran underwent neuropsychological testing regarding his TBI at his local VA facility. The result of this testing was that TBI was excluded as a cause of persistent cognitive impairment. The history of the Veteran’s injury documented that persistent cognitive deficits related to TBI could be ruled out since the Veteran had returned to his normal duty for 2 years unimpeded after the injury. This is history is consistent with an expectation of cognitive recovery. The provider noted that the Veteran was reporting subjective symptoms that were atypical in both content and course for residuals of a TBI, specifically inappropriate social comprehension of increasing severity. The Veteran’s subjective symptoms were not corroborated by the neuropsychological testing where he generally scored within normal limits. An August 2017 VA examination documented no complaints regarding memory, attention, concentration, or executive function attributable to the TBI. The Veteran’s judgment was normal. The examiner indicated that his social interaction was routinely normal. He was always oriented to person, time, place, and situation. His motor activity was normal. His visual spatial orientation was normal. He reported subjective symptoms that did not interfere with his work, activities of daily life, or relationships, specifically mild headaches. There were no neurobehavioral effects noted on the examination. He was able to communicate by spoken and written language. His consciousness was normal. There were no abnormalities on the Veteran’s MRI. The examiner stated that “given [the Veteran’s] injury characteristics of mild TBI, there would be no expected increase in residuals associated with TBI, as it is well-established fact, that individuals who sustain similar injuries return to baseline levels soon after the event.” Based on the evidence of record, the results of the Veteran’s VA examinations indicate that the Veteran’s scores as to all facets of residuals of TBI are 0. Under such circumstances a non-compensable VA rating is provided by the ratings table. 38 U.S.C. § 1155, 38 C.F.R. § 4.124a. The examiners noted that the symptoms the Veteran complained of were related to his psychiatric condition, a condition for which he is separately compensated. Thus, even if those symptoms were related to his TBI, it would be inappropriate to increase his compensation for a TBI based on those symptoms. 38 C.F.R. § 4.14. To the extent that the Veteran believes that he should receive an increase in his TBI compensation based on his headaches, his headaches have been described routinely as mild at his examinations. There is no evidence in these examinations or more generally in the record that his headaches interfere with his daily life or relationships. They were appropriately labeled level 0 in the subjective complaints facet of his TBI examinations. 38 U.S.C. § 1155, 38 C.F.R. § 4.124a. The Veteran also received a companion examination for a headache condition. The headache examination indicated that the Veteran reported mild headaches. When his headaches occurred, they were characterized by constant pain in the head, on both sides of the head with sensitivity to sound and light, typically lasting less than 1 day. The Veteran’s headaches did not result in prostrating attacks. The Board has considered whether this evidence meets the criteria for a compensable rating under Diagnostic Code 8100 which rates based on the frequency of prostrating attacks. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8100. The Board notes that this code is specifically for migraines, a diagnosis the Veteran does not have. Thus, a rating under this code would be by analogy. 38 C.F.R. § 4.20. Under this code, a 10 percent rating is provided where there are characteristic prostrating attacks averaging once every two months. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8100. A non-compensable rating is provided where there are less frequent prostrating attacks. Id. Consequently, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran’s headaches associated with his TBI are not severe enough to meet the criteria for a compensable rating under DC 8100. Id. Consequently, because the Veteran does not have the condition that DC 8100 is specifically written to compensate for, and because his symptoms would not warrant a compensable rating by analogy under DC 8100, the Board finds that it is appropriate to continue to rate the Veteran’s mild tension headaches as a non-compensable residual of his TBI. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8045. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Board cannot make a fully-informed decision on the claim for service connection for a low back disability because the most recent VA examiner did not provide sufficient information to guide the Board. The May 2016 VA examination indicates that the Veteran is not now, and has never been, diagnosed with a thoracolumbar spine condition. However, an October 1996 X ray report documents minor degenerative findings at that time. Accordingly, the examiner should provide an addendum opinion explaining this apparently contradictory piece of information regarding the Veteran’s medical history. 2. Entitlement to service connection for a bilateral knee disability, a bilateral foot disability, and a left lower leg disability is remanded. The Veteran seeks service connection for pain and for neurological symptoms of tingling and numbness throughout his lower extremities. While these were not observed at the May 2016 VA examination, a reconsideration of the Veteran’s lower back condition accounting for a previous diagnosis is necessary, and since the pain and other symptoms in the Veteran’s legs may be in some way related to his lower back, a decision on the lower back claim could significantly impact a decision on the leg, knee, and foot claims. Therefore, the issues are inextricably intertwined. A remand of the claims for the left leg, bilateral knee, and bilateral foot claims is required. 3. Entitlement to service connection for additional disability as a result of a hernia operation performed at a VA medical facility is remanded. The Veteran’s claim for compensation regarding residuals of his hernia operation appears to have been developed as a claim for direct service connection. However, it appears that the Veteran is not alleging that this condition is related to his service. Instead, he appears to be claiming that he has been rendered further disabled as a result of VA surgical treatment. In his initial claim in July 2015, the Veteran identified his claim as one for a hernia operation resulting in blood in his urine and stool after any light strain and identified the date of his hernia operation in November 2011, long after his service ended. His July 2016 NOD again supports that this was the theory he was advancing, that he has been further injured as a result of the November 2011 hernia surgery. Consequently, this matter should be remanded and appropriate development of the Veteran’s claim as a claim for disability caused by VA treatment, rather than by an in-service injury, including any necessary VA examinations or opinions. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s lower back condition is at least as likely as not related to his service. If the examiner determines that the Veteran does not have a diagnosable lower back disability or pain resulting in disability, the examiner should address his historical diagnosis with degenerative changes to his lower back from October 1996 radiographic films. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for a left lower leg condition, bilateral knee condition, and bilateral foot condition. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. 3. Undertake all necessary development, including obtaining any necessary VA opinions and examinations to develop and adjudicate the Veteran’s claim for compensation for residual disability from his November 2011 hernia surgery as a claim for service connection for disability resultant from VA surgical care. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel