Citation Nr: 21003970 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-20 473 DATE: January 25, 2021 ORDER An increased disability rating in excess of 10 percent for right knee sprain prior to February 4, 2020, and in excess of 20 percent therefrom is denied. A separate 10 percent disability rating for residuals of Traumatic Brain Injury (TBI), involving a diagnosis of central vertigo with symptoms of dizziness and vertigo, is granted. FINDING OF FACT 1. Prior to February 4, 2020, the service-connected right knee sprain was manifested by no more than painful flexion to a noncompensable degree, and since February 4, 2020, the disability was manifested by no more than flexion limited to 30 degrees. 2. Throughout the appeal period, the Veteran has had residuals of TBI manifested by dizziness and vertigo associated with a diagnosis of central vertigo. CONCLUSION OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for the service-connected right knee sprain prior to February 4, 2020, and in excess of 20 percent therefrom have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. A separate disability rating of 10 percent for residuals of TBI, involving a diagnosis of central vertigo, to include symptoms of dizziness and/or vertigo, is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.84, Diagnostic Code 6204, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to September 2003, including combat service in Iraq and his decorations include the Combat Action Ribbon. The case is on appeal from July 2013 rating decisions. In an August 2018 Board decision, the Veteran’s claims for entitlement service connection for hearing loss and entitlement to a total disability rating based on individual unemployability (TDIU) were dismissed. In addition, his claims for an increased disability rating in excess of 10 percent for his right knee strain, entitlement to a separate compensable disability rating for residual of TBI, and entitlement to earlier effective dates for urinary tract infection, posttraumatic stress disorder (PTSD), asthma, right lower extremity radiculopathy, and left lower extremity radiculopathy were denied. In the same decision, the Board also remanded claims of service connection for a gastrointestinal disorder, sleep apnea, and erectile dysfunction, and entitlement to an increased disability rating in excess of 10 percent prior to July 10, 2014, and in excess of 40 percent thereafter for a lumbar spine disability. Thereafter, the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). By a June 2019 order, the Court vacated the August 2018 Board decision to the extent that it denied a disability rating in excess of 10 percent for right knee sprain and a separate compensable rating for residuals of TBI. The Court remanded the claims back to the Board for compliance with instructions pursuant to a June2019 Joint Motion for Partial Remand (JMPR). The JMPR otherwise noted the Veteran was not appealing that part of the Board’s decision dismissing the issues of service connection for hearing loss and entitlement to a TDIU, and denying entitlement to an increased disability rating in excess of 10 percent for his right knee strain, entitlement to a separate compensable disability rating for residual of TBI disability, and entitlement to earlier effective dates for urinary tract infection, PTSD, asthma, right lower extremity radiculopathy, and left lower extremity radiculopathy. The JMPR also noted that the Court had no jurisdiction over the issues of entitlement to service connection for a gastrointestinal disorder, sleep apnea, and erectile dysfunction, and entitlement to an increased disability rating in excess of 10 percent prior to July 10, 2014, and in excess of 40 percent thereafter for the service-connected lumbar spine disability which were remanded by the August 2018 Board decision. Subsequently, the remanded issues were addressed by a November 2018 Board decision. Upon return from the Court, the Board remanded the instant matters in December 2019. Upon remand from the Board, an August 2020 rating decision increased the disability rating for TBI from noncompensable to 40 percent effective February 5, 2020. It also increased the rating of right knee sprain from 10 percent to 20 percent effective February 4, 2020. 1. An increased disability rating in excess of 10 percent for the service-connected right knee sprain prior to February 4, 2020, and in excess of 20 percent therefrom The Veteran is seeking an increased rating for his right knee disability. He filed a claim for increase in July 2012, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a 10 percent rating prior to February 4, 2020, and a 20 percent rating beginning from that date. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disabilities of the knee are evaluated under the schedular criteria of Diagnostic Codes (DCs) 5256 through 5263, under 38 C.F.R. § 4.71a. The Veteran’s disability is currently rated under DC 5260. The applicable schedular criteria for these disabilities is set forth as follows: The Knee and Leg Rating 5256 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 5258 Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint 20 5259 Cartilage, semilunar, removal of, symptomatic 10 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10 DC 5257 is not predicated on loss of range of motion, and thus §§ 4.40 and 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Further, DC 5257 is not a catch-all code intended to cover all disabilities of the knee not expressly contemplated by other DCs. Delisle v. McDonald, 789 F.3d 1372, 1357 (Fed. Cir. 2015). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). B. Discussion Prior to February 4, 2020 The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to February 4, 2020. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss. He wrote in a July 2014 statement that must wear a knee brace and use a cane to be able to walk without fear of falling. Likewise, his spouse wrote in an October 2012 statement that he had difficulty completing long walks or drives, climbing stairs, and it appeared his knee locked on him. She also wrote in a July 2014 statement that in the five years she had known him, his condition had deteriorated. She described him as able to stand or walk for no more than 30 minutes. He used a cane, but she had to help him walk up and down the steps to the house; he had fallen down the steps into the bedroom due to balance issues. He had severe swelling in the knee when undertaking activity for more than 30 minutes. Similarly, his mother wrote in a July 2014 statement that he used a cane and knee brace to help with pain and stability. She felt that, since getting out of service, he had been able to go shorter and shorter amounts of time before needing to stop and take breaks. Also, he had fallen on more than one occasion when trying to go up the two steps into her house. Even considering the lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. At a July 2012 VA TBI evaluation, he had full range of motion. At a September 2012 evaluation for the Social Security Administration (SSA), his range of motion was found to be within normal limits. He was found to have full range of motion at VA in July 2013. A June 2013 VA examination found flexion to 90 degrees. At subsequent VA consultations in August 2013 and April 2014, he was again found to have no limitation of motion. As there is no indication of limitation of motion more nearly approximating flexion limited to 30 degrees, a higher rating under DC 5260 is not assignable. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A rating under DC 5256 is not warranted as there is no indication of ankylosis. A separate or higher rating under DC 5257 is not warranted. As indicated, the lay statements indicate falling. The medical records also refer to instability. A July 2012 TBI consultation indicates a balance disturbance every once in a while due to the knee. The Veteran reported to the June 2013 VA examiner that he constantly used a brace and cane. He also reported use of a brace and/or cane in December 2014 and February 2019. His wife wrote a message to his VA providers in July 2014 explaining that he was unstable on his knees (and back), so was constantly falling down stairs and that he needed help with stairs into the house and the bedroom. Yet, an SSA examiner in September 2012 observed that a cane was brought to the examination but was not required for ambulation. Likewise, at a VA emergency department in August 2013, it was noted that he had a steady gait without the cane, which he had left at home. He sought treatment at VA for a fall in February 2019 (although the medical reports indicate that the fall was not caused by the knee disability), where it was noted that he was using a cane “now.” Notwithstanding the complaints of instability and falling, the June 2013 VA examiner found normal joint stability testing. A magnetic resonance imaging scan in September 2013 found no evidence of acute ligamentous injury. Overall, the Board finds that this evidence is consistent with no more than minimal instability. The witnesses indicated ongoing instability concerns, especially with stairs, and he reported use of a brace and cane for instability. However, the objective evidence indicated that the cane was not necessary, and there was no medical pathology to account for the instability. Likewise, the September 2012 and August 2013 medical records contradict the statements indicating a constant need for the cane. Likewise, the February 2019 treatment for a fall indicated he was “now” using a cane, which implied that he had not been using a cane constantly prior to the fall. In light of this record, the requirements for a rating under DC 5257, involving slight instability, are not more nearly approximated. Pertinent to DCs 5258 and 5259, there is some question as to whether he had a meniscal (semilunar cartilage) condition. The June 2013 VA examiner marked “yes” where asked if the Veteran had a history of a meniscal condition with symptoms involving dislocation and frequent episodes of locking and pain. The VA examiner, however, provided no detail or support for this assessment. Of note, the examiner’s assessment conflicts with the other evidence indicating no history of a meniscal condition. For example, an MRI at VA in September 2013 found no evidence for a meniscal injury. There was no effusion at an April 2014 VA consultation. More recently, a VA examiner in February 2020 found no history of a meniscus condition. Because the June 2013 VA examiner’s assessment was conclusory and unsupported, plus is contradicted by the other evidence, the Board finds that it is not probative evidence to support assignment of a rating under DC 5258 or 5259. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). A separate or higher rating is also not warranted under DC 5261 based on limitation of extension. At the June 2013 VA examination, he had extension to 0 degrees. As indicated, the remaining medical records indicate no other limited motion. Pertinent to DC 5262, regarding impairment of the tibia and fibula, the June 2013 VA examiner found multiple bone islands of distal femur and proximal tibia. There was no indication of nonunion or malunion of the tibia and/or fibula. Moreover, the VA examiner determined that this condition was independent and separate from the service-connected knee strain. Hence, a separate rating under DC 5262 is not assignable. See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371, at *20 (Vet. App. Dec. 30, 2020). Finally, pertaining to DC 5263, there is no indication of genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to February 4, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From February 4, 2020 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the right knee disability from February 4, 2020. The Board again acknowledges the Veteran’s lay reports of symptoms and functional loss. He reported at a February 2020 VA examination that he had pain in the right knee, on average 4 out of 10 in severity, but it could get more severe. He reported a loss in range of motion, such that he was not able to run at all. He also reported periods of swelling. He had difficulty sitting or driving for long periods as he would get stiff. Flare-ups of the right knee occurred 1-2 times a month, which he rated as severe and lasted 2-3 days. The right knee flare-ups were precipitated by increase in activity and weather and were alleviated by rest and over-the-counter pain medication. He had difficulty squatting or kneeling; difficulty climbing up or down stairs; was not able to run; had worse pain with prolonged standing or walking; and had pain with standing up from a sitting position. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 15 degrees. A February 2020 VA examiner found flexion to 90 degrees on initial testing with a reduction to 40 degrees with repetitive use over time and to 30 degrees during flare-ups. As the degree of additional limitation did not result in limitation of motion more nearly approximating flexion limited to 15 degrees, a higher rating under DC 5260 is not warranted. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. A rating under DC 5256 is not warranted as there is no indication of ankylosis. A separate or higher rating under DC 5257 is not warranted. As indicated, the Veteran has reported falling, as have multiple witnesses. He stated during the February 2020 VA examination that he had a “few times” his knee gave out. Notwithstanding the complaints of instability and falling, the VA examiner stated that there was no history of recurrent subluxation or lateral instability, and no joint stability on testing. Overall, the Board finds that this evidence is consistent with no more than minimal instability. The Veteran reported only a “few” times of instability, which is inconsistent with recurrent episodes. In light of this record, the requirements for a DC 5257 involving slight instability, are not more nearly approximated. Pertinent to DCs 5258 and 5259, the VA examiner in February 2020 found no history of a meniscus condition. A separate or higher rating is also not warranted under DC 5261 based on limitation of extension. At the February 2020 VA examination, the Veteran had extension to 5 degrees, including after repetitive use over time and during flare-ups. Under DC 5261, this is consistent with no more than a noncompensable rating. Under DC 5262, regarding impairment of the tibia and fibula, the February 2020 VA examiner found no impairment involving the tibia or fibula. Finally, pertaining to DC 5263, there is no indication of genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent from February 4, 2020. The parties’ June 2019 JMPR remanded this matter for a VA examination consistent with Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The February 2020 VA examination contains findings under Sharp. Hence, the Board finds that there was substantial compliance with the JMPR. In an October 2020 brief, the Veteran’s representative argued that a 20 percent rating was warranted prior to February 4, 2020. The attorney argued that the June 2013 VA examiner found the symptoms more severe than 10 percent. The attorney asked the Board to remand the matter for discussion of this evidence if the Board could not grant a 20 percent rating earlier than the current date. Contrary to the attorney’s argument, the June 2013 VA examination did not indicate a higher disability level, as discussed. The February 2020 VA examiner likewise did not indicate when the onset of the 20 percent disability level began. Prior to February 4, 2020, the next earlier assessment was a February 2019 VA medical record indicating “good” range of motion. Based upon the evidence in this case, the exact onset of the Veteran’s 20 percent level of disability cannot be determined with any certainty. The earliest that that it can be factually ascertained that he met the criteria for a percent rating is February 4, 2020, the date he was examined by VA. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. Hence, the 20 percent rating cannot be assigned any earlier. Moreover, a remand is not needed. The RO has already considered this evidence, as shown by the July 2013 rating decision. Hence, there is no prejudice to the Veteran with proceeding. See Bernard v. Brown, 4 Vet. App. 384 (1993). In short, no further action is needed on the basis of the attorney’s arguments. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent since February 4, 2020. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. A separate compensable disability rating for residuals of TBI, to include dizziness and/or vertigo, and visual impairment. The Veteran contends that a separate, compensable rating is warranted for residuals of a TBI involving dizziness and/or vertigo. The Board previously denied a separate rating in its August 2018 decision. On appeal to the Court, the parties to the JMPR found that the Board did not discuss the Veteran’s reported dizziness or vertigo. The parties cited (1) his report of experiencing dizziness at a VA TBI consultation on July 12, 2012; (2) a denial of dizziness in January 2017; (3) a May 2017 medical record showing that he had recently began to experience dizziness a few weeks earlier; and (4) a June 2017 VA community based primary care note reflecting his complaints of dizziness when lying down in bed; and (5) an August 2017 VA assessment of suspected benign proximal positional vertigo. The parties agreed that the Board must consider whether Veteran is entitled to a rating for his reported dizziness or vertigo under the rating criteria in Diagnostic Code 8045 or an appropriate diagnostic code. The parties cited 38 C.F.R. § 4.124a, Diagnostic Code 8045 (recognizing dizziness as a subjective symptom ratable under the table “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” but instructing raters to separately evaluate residuals with distinct diagnoses). Upon return from the Court, the Board remanded the matter in December 2019 for a new VA examination. That examination was conducted in February 2020. To be clear, the issue in this appeal is not whether a higher disability rating is warranted for the TBI disability. Rather, the scope of this appeal only involves whether a separate rating can be assigned for residuals of the TBI, to specifically include dizziness and/or vertigo. The Board will proceed accordingly. A. Applicable Law The Veteran’s disability has been assigned a disability rating under Diagnostic Code (DC) 8045 of 38 C.F.R. § 4.124a. For sake of completeness, the rating schedule is set forth as follows: 8045 Residuals of traumatic brain injury (TBI): There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table Evaluate emotional/behavioral dysfunction under §4.130 (Schedule of ratings—mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under §4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): ”Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under diagnostic code 8045. Note (5): A veteran whose residuals of TBI are rated under a version of §4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran’s disability rating to determine whether the veteran may be entitled to a higher disability rating under diagnostic code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified Facets of cognitive impairment and other residuals of TBI not otherwise classified Level of impairment Criteria Memory, attention, concentration, executive functions 0 No complaints of impairment of memory, attention, concentration, or executive functions. 1 A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. 2 Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. 3 Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Total Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Judgment 0 Normal. 1 Mildly impaired judgment. For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. 2 Moderately impaired judgment. For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. 3 Moderately severely impaired judgment. For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. Total Severely impaired judgment. For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Social interaction 0 Social interaction is routinely appropriate. 1 Social interaction is occasionally inappropriate. 2 Social interaction is frequently inappropriate. 3 Social interaction is inappropriate most or all of the time. Orientation 0 Always oriented to person, time, place, and situation. 1 Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. 2 Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation. 3 Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Total Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Motor activity (with intact motor and sensory system) 0 Motor activity normal. 1 Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). 2 Motor activity mildly decreased or with moderate slowing due to apraxia. 3 Motor activity moderately decreased due to apraxia. Total Motor activity severely decreased due to apraxia. Visual spatial orientation 0 Normal. 1 Mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system). 2 Moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS (global positioning system). 3 Moderately severely impaired. Gets lost even in familiar surroundings, unable to use assistive devices such as GPS (global positioning system). Total Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms 0 Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. 1 Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. 2 Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects 0 One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these 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 than some of the other effects. 1 One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. 2 One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. 3 One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Communication 0 Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. 1 Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. 2 Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. 3 Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs. Total Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Consciousness Total Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. B. Discussion In this case, the Board finds that a separate 10 percent rating is warranted for symptoms associated with the Veteran’s diagnosis of central vertigo. There are two central questions that must be resolved here. First, is whether the Veteran has a separate diagnosis that can be compensated apart from DC 8045 for TBI. The second is, if so, whether the separate diagnosis is at a compensable level under a separate diagnostic code in the rating schedule. As for the first question, the evidence establishes a separate diagnosis. The Veteran underwent a VA Ear examination in March 2020. This VA examiner made the diagnosis of central vertigo. A VA examiner in September 2020 opined that the Veteran had vertigo at least as likely as not caused by the diagnosed TBI. The examiner’s rationale was that the medical evidence showed that TBI frequently caused central vertigo. As cited in the JMPR, the earlier evidence, such as in August 2017, indicated an assessment of dizziness, per description, most consistent with vertigo--suspect benign paroxysmal positional vertigo (BPPV) even with negative Dix Hallpike given fleeting nature of vertigo. Overall, this evidence confirms a diagnosis of central vertigo secondary to the Veteran’s TBI disability. The corollary question is whether this condition can be rated separately from the TBI. The rating schedule for TBI contemplates subjective symptoms such as dizziness. See 38 C.F.R. § 4.124a, DC 8045 (Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified, Subjective Symptoms). However, the rating schedule for TBI also directs physical (including neurological) dysfunction to be rated under an appropriate diagnostic code. Id. As indicated, the evidence here shows the diagnosis of central vertigo as a separate physical dysfunction with a distinct diagnosis, instead of identifying it as a symptom of the TBI involving “dizziness.” Neither the noncompensable rating prior to February 2020 nor the 40 percent rating since February 2020 for TBI were specifically awarded on the basis of the vertigo symptoms. As shown by the August 2010 rating decision, the Veteran’s 40 percent rating for TBI was assigned based on the highest facet level of severity of “2.” The RO found that multiple facets warranted a level “2.” The RO did not specifically cite the vertigo symptoms as supporting the 40 percent rating. Hence, a 40 percent rating could be supported for the Veteran’s TBI even if the symptoms of central vertigo were rated separately. As such, the Board finds that a separate disability can be assigned. The next question is whether the rating schedule provides a potentially analogous diagnostic code under which the Veteran’s central vertigo may be reasonably rated by analogy and assigned a compensable rating. To this end, the Board finds that DC 6204, regarding peripheral vestibular disorders, is most closely analogous. See 38 C.F.R. § 4.87. The rating schedule is as follows: 6204 Peripheral vestibular disorders: Dizziness and occasional staggering 30 Occasional dizziness 10 Note: Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. Evaluating the Veteran’s symptoms under this diagnostic code, the Board finds that a 10 percent rating is warranted. Throughout the appeal period, the Veteran has reported dizziness/vertigo with occasional falling. Immediately prior to the appeal period, he reported during treatment in June 2012 that he had vertigo (and knee problems), such that had fallen 2-3 times recently. At a July 2012 VA TBI evaluation, the Veteran self-reported the severity of his feeling dizzy as moderate and his loss of balance as severe. In a July 2012 addendum, the Veteran described dizziness when standing up or walking. He reported a balance disturbance “ever[y] once in a while” due to his knee. In an August 2013 message to his VA treatment provider, he reported dizziness when driving, legs feeling numb, and lightheadedness. He again reported lightheadedness at VA in January 2015. A private (non-VA) medical record in January 2017 indicates an episode at home where he blacked out after getting up too soon. In May 2017, he reported that, during the prior few weeks, he had been getting very dizzy when lying down almost to the point of feeling drunk (even though he did not drink). He felt it was now starting to occur during the day as well, such that his head had started to feel funny, lightheaded, and dizzy at times. During follow-up in June 2017, he reported first getting dizzy three weeks prior with lying down in bed with things around him feeling like they were moving/spinning. These symptoms were not daily, but had occurred 4-5 times that week. He was now getting the feeling more often during the day, even if standing, or talking. He described it as getting suddenly “like the room is moving feeling”; it lasted minutes only. At this time, the first assessment was made of dizziness, per description, most consistent with vertigo, suspect BPPV even with negative Dix Hallpike given fleeting nature of vertigo. More recently in January 2020, he reported that the episodes occurred only when lying down; they did not occur in any other body position. At the March 2020 VA Ear examination, he reported dizziness most of the time, which was getting worse. He reported losing his balance more frequently, almost constantly. During a consultation in May 2020, he reported symptoms every night when he would lie down but it was fleeting and improved, with some symptoms when lying down, but “not bad.” At a June 2020 VA Audiology consultation, he again reported dizziness usually occurring when he moved to a supine position and lasted on average 15-20 minutes. He described the dizziness as if rocking on a boat with an occasional “spinning” sensation. He noted that the symptoms were worse when in the dark if he did not have an item to focus on. Overall, this evidence is consistent with central vertigo involving occasional dizziness. Hence, a separate 10 percent rating is assignable. A 30 percent rating is not warranted as there was no occasional staggering due to the vertigo. He reported in June 2012 and July 2012 that he had occasional balance issues or falling. But, this was reported in the context of his service-connected knee disability. As that symptomatology is not associated with the central vertigo, it cannot support assignment of the 30 percent rating. Mittleider v. West, 11 Vet. App. 181 (1998) He reported at the March 2020 VA Ear examination that he had worsening dizziness with losing his balance almost constantly. But, in May and June 2020, he reported that it occurred only at night when lying down and was fleeting. The Board cannot account for this discrepancy. However, the latter accounts are more consistent with the earlier evidence, such as in June 2017 and January 2020. The Board gives these reports more probative weight as they were given independently and consistently during various VA treatment contexts, whereas the March 2020 report was given in the context of a VA examination. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Overall, the Board finds that the more probative evidence does not support a finding of dizziness and occasional staggering due to central vertigo consistent with a 30 percent rating under DC 6204. In conclusion, the Board finds that a separate rating of 10 percent is warranted throughout the appeal period for symptoms associated with central vertigo. To this extent, the appeal is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.