Citation Nr: 21064434 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-33 321 DATE: October 20, 2021 ORDER Entitlement to an effective date earlier than June 11, 2015 for the award of service connection for left ear hearing loss is denied. Entitlement to an effective date earlier than June 11, 2015 for the award of service connection for posttraumatic stress disorder (PTSD) is denied. From July 29, 2010 to the present, entitlement to an initial rating of 40 percent, but no higher, for residuals of traumatic brain injury (TBI) with posttraumatic headaches is granted. Prior to March 27, 2017, entitlement to an initial rating in excess of 70 percent for PTSD is denied. Entitlement to an initial compensable rating for left ear hearing loss is denied. From June 24, 2016, a rating of 10 percent, but no higher, for hypertension is granted. Prior to June 11, 2015, entitlement to a total disability rating due to individual unemployability (TDIU) is denied. From June 11, 2015, entitlement to special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. The Veteran filed a claim for VA compensation benefits in June 2010, including entitlement to service connection for TBI residuals, tinnitus, and hypertension. 2. The March 2011 rating decision granted entitlement to service connection for TBI, tinnitus, and hypertension. The Veteran did not timely appeal that decision and new and material evidence was not actually or constructively received within one year of the issuance of that decision. 3. After submitting a June 11, 2015 intent to file a claim, the Veteran filed a claim for VA compensation benefits in October 2015, including entitlement to service connection for PTSD, depression, anxiety, and bilateral hearing loss. On June 24, 2016, the Veteran filed a claim seeking an increased rating for hypertension. 4. From July 29, 2010, residuals of the Veteran's TBI have included memory loss, concentration problems, post-traumatic headaches, and dizziness productive of level 2 impairment, but no higher, in a facet of cognitive impairment and subjective symptoms. These symptoms are separate and distinct from the symptoms of his separately evaluated PTSD. 5. Prior to March 27, 2017, the Veteran's PTSD did not more closely approximate total occupational and social impairment. 6. Throughout the appeal, the Veteran's left ear hearing loss has manifested by no worse than level II hearing acuity and his nonservice-connected right ear hearing acuity has been no worse than level I. 7. Throughout the appeal, the Veteran's hypertension has more closely approximated hypertension with a history of diastolic pressure predominantly 100mm or more requiring continuous medication for control; but not diastolic pressure greater than 100 mm. 8. Prior to June 11, 2015, the Veteran's service-connected disabilities did not preclude him from securing or maintaining a substantially gainful occupation. 9. From June 11, 2015, the Veteran was in receipt of a combined 60 percent disability rating for his service-connected disabilities, separate and apart from his total rating for PTSD. CONCLUSIONS OF LAW 1. The March 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 2. The criteria for an effective date earlier than June 11, 2015 for the award of service connection for left ear hearing loss are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 3. The criteria for an effective date earlier than June 11, 2015 for the award of service connection for PTSD are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 4. From July 29, 2010, the criteria for an initial rating of 40 percent, but no higher, for TBI residuals with post-traumatic headache, separate and apart from the Veteran's rating for PTSD, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Codes 8045, 8100. 5. Prior to March 27, 2017, the criteria for an initial rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. 6. Throughout the appeal, the criteria for an initial compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 7. From June 24, 2016, the criteria for a rating of 10 percent, but no higher, for hypertension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101. 8. Prior to June 11, 2015, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 9. From June 11, 2015, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2004 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2016 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In May 2019, the Board remanded this matter for additional development and there has been substantial compliance with the Board remand directives. The AOJ attempted to secure medical records from the sources listed in the remand directives, but the Veteran did not complete and return a release. The duty to assist is not a one-way street, and the AOJ has achieved substantial compliance by requesting the Veteran's assistance. Moreover, records from the Social Security Administration (SSA) were secured, adequate medical examinations were provided to the Veteran, and adequate opinions were secured. In July 2019, the Veteran's former attorney notified the Board that he had concluded his representation in this matter. The Veteran has not since appointed a new representative and is proceeding pro se. A February 2021 rating decision granted an increased 70 percent initial rating for PTSD effective June 11, 2015, and an increased 100 percent total rating effective March 27, 2017. The decision also deferred the questions of increased ratings for left ear hearing loss and hypertension. While no rating decision subsequently addressed these issues, the June 2021 Supplemental Statement of the Case (SSOC) re-adjudicated the issues and explained that compensable ratings for left ear hearing loss and hypertension were not warranted. A June 2021 rating decision combined the separate evaluations of PTSD and TBI residuals with headaches and assigned a 100 percent rating. The issue of entitlement to SMC is raised by the record and is part and parcel of the increased rating claims on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (Board may need to explore schedular tools, including SMC, as part of an increased rating claim). 1. Entitlement to an effective date earlier than June 11, 2015 for the award of service connection for left ear hearing loss is denied. 2. Entitlement to an effective date earlier than June 11, 2015 for the award of service connection for PTSD is denied. The AOJ raised the issue of entitled to an earlier effective date for PTSD and left ear hearing loss following a determination that there was clear and unmistakable error (CUE) in a prior decision, although the Veteran and his former representative did not appeal these issues or advance any argument. See May 2019 Board Remand at 2. Generally, the effective date of an award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110. This statutory provision is implemented by a regulation that provides that the effective date for an award will generally be the date of receipt of claim or the date that entitlement to the benefit arose, whichever is later. 38 C.F.R. § 3.400. On March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary of the VA, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Prior to March 24, 2015, VA allowed for the filing of informal claims without any particular format or requirements aside from (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 38 C.F.R. §§ 3.1 (p), 3.155 (as in effect prior to March 24, 2015). Since March 24, 2015, if a claimant submits an intent to file and then files a formal claim within one year, the date of the intent to file may serve as the date of claim. Once a formal claim is filed, the intent to file is not associated with any subsequent formal claim, even if the subsequent formal claim is filed within one year of the intent to file. Initially, the Board notes that the Veteran is in receipt of service connection for PTSD and left ear hearing loss effective June 11, 2015, the date that he submitted an intent to file within one year of the October 2015 formal claim. While the Veteran submitted an earlier claim for VA compensation benefits in June 2010, prior to his July 2010 discharge from service, that claim did not explicitly seek compensation for hearing loss or a psychiatric disorder. See June 2010 VA Form 21-526c. However, a veteran's claim is not limited to the specific conditions claimed, and an analysis of the scope of claim should focus on the symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A claim seeking compensation for tinnitus and TBI could reasonably include a claim for hearing loss and PTSD. Thus, the Board must determine whether any claim for these disabilities remained pending. The March 2011 rating decision adjudicated the claim of entitlement to service connection for tinnitus and TBI. The Veteran did not appeal that decision, and new and material evidence was not actually or constructively received within one year of the issuance of the decision. Thus, the March 2011 rating decision is final, and the key question is whether this decision implicitly denied any pending claim for service connection for PTSD and hearing loss. There are four factors that the Board should consider when determining whether a claim was implicitly denied. The Board should consider (1) the specificity or relatedness of the claims involved; (2) the specificity of the adjudication (whether the decision at issue adjudicated the pending claim using language that could reasonably be inferred as denying the pending claim; (3) the timing of the claims involved; and (4) whether the claimant was represented at the time. Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (Cogburn I). Here, any claim for a psychiatric disorder would be based on the June 2010 claim seeking compensation for TBI, and any claim for hearing loss would be based on the June 2010 claim seeking compensation for tinnitus. The March 2011 rating decision adjudicated those claims in full by granting service connection for TBI and tinnitus, and the adjudication used the same terms that the Veteran used in his June 2010 claim. Thus, the first two factors weigh in favor of finding that any claim was implicitly denied. In this regard, the AOJ adjudicated the claims using the same language used by the Veteran. Moreover, the claims for a psychiatric disorder and hearing loss would have arisen from the same submission as the claims for TBI and tinnitus adjudicated in the March 2011 rating decision that is, the June 2010 claim form and thus the third factor also weighs in favor of implicit denial. The fourth factor weighs in favor of the Veteran, as at the time he was represented by a Veteran Service Organization, not an attorney. The balance of the factors weighs substantially in favor of finding that any claim for a psychiatric disorder and hearing loss was implicitly denied by the March 2011 rating decision. The claim was adjudicated using the same language that the Veteran used on his claim form and explicitly stated that it was addressing the June 2010 claim. See March 2011 Rating Decision. Although the Veteran was not represented by an attorney, any reasonable individual would believe that the June 2010 claim had been adjudicated in full. The Veteran has not argued otherwise. Indeed, the present facts closely mirror those of Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). There, the veteran filed a claim for a head injury and subsequently argued that claim seeking compensation for a head injury also included a claim for a psychiatric disorder. The United States Court of Appeals for the Federal Circuit affirmed the denial of an earlier effective date of service connection for a psychiatric disorder and agreed that any claim for a psychiatric disorder was implicitly denied when the head injury claim was adjudicated. Accordingly, as the June 2010 claim was fully adjudicated by the final March 2011 rating decision, and as the next possible date of claim is June 11, 2015, entitlement to an effective date of service connection earlier than June 11, 2015 for the awards of service connection for left ear hearing loss and PTSD must be denied. 3. From July 29, 2010 to the present, entitlement to an initial rating of 40 percent, but no higher, for TBI with posttraumatic headaches is granted. The Veteran is in receipt of an initial 40 percent rating for TBI with post-traumatic headaches pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8045 prior to April 6, 2016; thereafter he is in receipt of a 10 percent rating through January 6, 2020; and thereafter his TBI and headaches are evaluated together with his PTSD. The period on appeal is from July 29, 2010, the effective date of service connection for TBI with post-traumatic headaches. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include 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. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. VA is to 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/tinnitus; loss of sense of smell/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 a TBI. For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, VA is to evaluate under the most appropriate Diagnostic Code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. VA should 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. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. The applicable version of Diagnostic Code 8045 contains the following relevant notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 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" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury 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. October 2010 TBI Examination The Veteran presented for an initial TBI examination in October 2010. The VA-contracted examiner noted objective evidence on testing of mild impairment of memory and stated that the Veteran was able to recall 3 out of 5 objects after a five-minute delay, and his biggest problem was with memory and concentration. This level of impairment correlates with a "2" for this facet. The examiner assessed the Veteran's judgment, social interaction, orientation, motor activity, and visual spatial orientation as normal. This correlates with a "0" for this facet. The examiner assessed the Veteran as experiencing three or more subjective symptoms that do not interfere with work, instrumental activities of daily living, or close relationships. The Veteran reported occasional headaches and dizziness. This correlates with a "0" for this facet. The examiner assessed the Veteran as having one or more neurobehavioral effects due to TBI, specifically moodiness and irritability, that do not interfere with workplace interaction or social interaction. This correlates with a "0" for this facet. The examiner assessed the Veteran's communication as manifested by ability to communicate by spoken and written language and comprehend spoken and written language. No functional impairment was noted. This correlates with a "0" for this facet. The examiner assessed the Veteran's consciousness as normal. This is consistent with a "0" for this facet. Here, the Veteran's highest score for any facet was "2" due to objective evidence of memory problems. A rating of "2" is consistent with a 40 percent rating under Diagnostic Code 8045. April 2016 and March 2017 TBI Examinations Through his former attorney, the Veteran argued that the April 2016 TBI examination is inadequate for rating purposes and should not be used. See February 2017 Correspondence. The Board agrees. Notably, the examiner inaccurately described the history of the Veteran's headaches, demonstrating that he was not familiar with the history of the Veteran's TBI. Thus, the Board will not consider the April 2016 TBI examination. The Board notes in passing that the April 2016 TBI examination could not afford the Veteran a higher rating. With respect to the March 2017 TBI examination report, the Veteran competently and credibly reported the presence of headaches since he left service. See February 2018 Affidavit. This is inconsistent with the March 2017 TBI examination report, which notes no headaches or subjective symptoms. The Board finds that this examination report is also inadequate and again notes that this report could not afford the Veteran a higher rating. February 2020 TBI Examination The February 2020 VA-contracted TBI examiner noted that the Veteran's headaches had worsened and were now on a daily basis and diagnosed post-traumatic headaches as a residual of TBI. The examiner noted a complaint of mild memory loss, but without objective evidence on testing. This level of impairment correlates with a "1" for this facet. However, the Board observes that the level of impairment described by the examiner, such as forgetting his tasks and inability concentrating and giving up easily, is at least as severe as the level of impairment noted on the October 2010 TBI examination report. The varying level of impairment is as likely as not a result of different examiners using different terms to describe the same level of disability, and the Board resolves any reasonable doubt as to this point in favor of the Veteran. Thus, the Board will continue to apply the level "2" for this facet that was noted by the October 2010 examiner. The examiner assessed the Veteran's judgment, social interaction, orientation, motor activity, and visual spatial orientation as normal. This correlates with a "0" for this facet. The examiner assessed the Veteran as experiencing three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or close relationships. Specifically, the examiner noted daily headaches with vomiting once or twice a week with hypersensitivity to sound and light. This correlates with a "1" for this facet. The examiner assessed the Veteran as having one or more neurobehavioral effects due to TBI, specifically irritability, that occasionally interferes with workplace interaction and social interaction or both but does not preclude them. This correlates with a "1" for this facet. The examiner assessed the Veteran's communication as manifested by ability to communicate by spoken and written language and comprehend spoken and written language. No functional impairment was noted. This correlates with a "0" for this facet. The examiner assessed the Veteran's consciousness as normal. This is consistent with a "0" for this facet. Here, the Veteran's highest score for any facet was "2" due to objective evidence of memory problems. A rating of "2" is consistent with a 40 percent rating under Diagnostic Code 8045. The Board observes that the Veteran is separately service connected for PTSD. However, the evidence shows that the symptoms of PTSD do not include the Veteran's memory problems. See, e.g., March 2017 PTSD Examination Report (symptoms between TBI and PTSD can be differentiated, TBI symptoms are memory and concentration problems, PTSD symptoms are hyperarousal, avoidance, suspiciousness, panic attacks, anxiety, sleep disturbances). Moreover, PTSD is not shown to be a residual of TBI. Thus, the Veteran may be assigned separate ratings for PTSD and TBI while complying with Diagnostic Code 8045 and without pyramiding, or double-compensating, for his symptoms. See 38 C.F.R. §§ 4.14, 4.124a, Diagnostic Code 8045. As noted above, the February 2020 examiner separately diagnosed post-traumatic headaches, and thus this is part of his service-connected TBI disability. Post-traumatic headaches are not listed in the rating schedule. However, migraine is a listed condition under 38 C.F.R. § 4.124a, Diagnostic Code 8100, and the Board finds that this is the most appropriate Diagnostic Code for rating the Veteran's headaches. Under Diagnostic Code 8100, a maximum schedular 50 percent rating is warranted for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating is warranted for migraine with characteristic prostrating attacks averaging one in 2 months over the last several months. A noncompensable rating is warranted for migraine with less frequent attacks. Here, the Veteran is not entitled to a separate compensable rating for post-traumatic headaches, as the evidence shows that his post-traumatic headaches are not manifested with prostrating attacks of migraine or non-migraine headache pain. See February 2020 Headaches Examination Report. This is consistent with a zero percent rating under Diagnostic Code 8100. Moreover, his headache symptoms limit his ability to focus or concentrate, and impairment in concentration is included in the facet of TBI impairment that forms the basis for the Veteran's baseline 40 percent rating for TBI. Thus, separately compensating the Veteran for his headache symptoms would result in pyramiding (double-counting) of disabilities. The Board acknowledges the Veteran's statements that he has to lay down in complete silence to recover from his headaches. See, e.g., February 2018 Affidavit. The Veteran is competent to report impairment from his headaches and his report is credible. However, the evidence of record shows that his headaches do not more closely approximate headaches with very frequent and prolonged prostrating attacks productive of extreme economic inadaptability, and in the absence of this level of impairment the highest rating that his headaches could warrant under Diagnostic Code 8100 is 30 percent, which is less than the 40 percent rating he is entitled to based on the TBI rating criteria in Diagnostic Code 8045. Thus, as the Veteran is shown to have TBI level "2" facets throughout the appeal, with no additional separately compensable residuals, an initial rating of 40 percent, but no higher, for TBI with post-traumatic headaches is warranted throughout the appeal, separate and apart from his rating for PTSD. 4. Prior to March 27, 2017, entitlement to an initial rating in excess of 70 percent for PTSD is denied. The Veteran is currently in receipt of an initial 70 percent rating for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411 (PTSD) prior to March 27, 2017. Thereafter, he is in receipt of a 100 percent schedular rating for PTSD (alone or combined with TBI residuals) and thus the Board will limit the discussion to the period prior to receipt of his 100 percent rating. In this regard, and as discussed above, the Veteran's 100 percent schedular rating for PTSD effective March 27, 2017 is separate from his concurrent 40 percent rating for TBI throughout the appeal. A 100 percent rating for PTSD is warranted where PTSD is productive of total occupational and social impairment, with symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself 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. The Veteran presented for examinations in December 2015 and March 2017. Notably, the March 2017 examiner noted that the Veteran stopped taking medication because he felt "like a zombie" and was talking with other veterans, and noted occupational and social impairment with deficiencies in most areas. The examiner stated that the Veteran had recently been fired from his job and noted much hyperarousal, anger, and avoidance. The examiner specifically noted that the Veteran's anger was "impairing" his occupational and social functioning. The symptoms of the Veteran's PTSD noted included neglect of hygiene and intermittent inability to maintain minimal personal hygiene, the latter symptom being among those that the rating schedule associates with a 100 percent schedular disability rating. Here, while the March 2017 examiner noted some symptoms associated with the 100 percent disability level at the March 2017 examination, the Veteran's level of impairment through March 2017 did not more closely approximate total occupational and social impairment. For the purposes of this analysis, the Board concedes that the symptoms noted in March 2017 existed prior to the day of the examination. However, the March 2017 examination report shows that the Veteran was talking informally to other veterans and that he still had some social relationships with his family. This level of impairment is inconsistent with total occupational and social impairment and is more consistent with the Veteran's initial 70 percent rating for PTSD, with a TDIU assigned wholly due to PTSD (resulting in a single disability rated as total). Accordingly, prior to March 27, 2017, an initial rating in excess of 70 percent for PTSD is denied. 5. Entitlement to an initial compensable rating for left ear hearing loss is denied. The Veteran is in receipt of an initial noncompensable rating for left ear hearing loss under 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. The period on appeal is from June 11, 2015, the effective date of service connection. Hearing loss is evaluated under the criteria set forth in the VA Schedule for Rating Disabilities. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85, Table VI, Table VII. Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000-hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). Level I represents essentially normal acuity, and level XI represents profound deafness. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. In cases involving exceptional patterns of hearing impairment, defined as where the pure tone sensitivity threshold is equal to or greater than 55 decibels at each of 1000, 2000, 3000, and 4000-hertz or pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, then the veteran's hearing threshold is also applied to Table VIA, which provides a numeric designation of hearing impairment based solely upon pure tone threshold average. For each ear with an exceptional pattern of hearing impairment, the more favorable (i.e., greater) numeric designator from either Table VI or Table VIA is then applied to Table VII. See 38 C.F.R. § 4.86. In cases where impaired hearing is service-connected in only one ear, the nonservice-connected ear is assigned a Roman numeral designation of "I" when applying Table VII. However, if hearing impairment in one ear is compensable to a degree of 10 percent or more as a result of service-connected disability and there is hearing impairment in the nonservice-connected ear that constitutes a disability for VA purposes, the nonservice-connected ear is compensable as if service-connected. See 38 C.F.R. §§ 3.383, 4.85. During the period on appeal, controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing results from audiology examinations were conducted in December 2015, March 2017, and March 2021. At the December 2015 examination, the Veteran had an average sensitivity threshold of 36 decibels for the left ear and 18 decibels for the nonservice-connected right ear, with 90 percent speech discrimination for the left ear and 96 percent speech discrimination for the right ear. This is consistent with Level II hearing acuity in the left ear and Level I acuity in the nonservice-connected right ear. The Veteran did not meet the criteria for an exceptional pattern of hearing loss. Application of Level II acuity for the left ear and Level I acuity for the right ear to Table VII shows that a zero percent rating is warranted. The Veteran's reported symptoms of difficulty hearing and asking people to repeat themselves are contemplated by the rating schedule. At the March 2017 examination, the Veteran had an average sensitivity threshold of 43 decibels for the left ear and 19 decibels for the nonservice-connected right ear, with 90 percent speech discrimination for the left ear and 98 percent speech discrimination for the right ear. This is consistent with Level II hearing acuity in the left ear and Level I acuity in the nonservice-connected right ear. Application of Level II acuity for the left ear and Level I acuity for the right ear to Table VII shows that a zero percent rating is warranted. The Veteran's reported functional impairment was that he was "pretty good at lip reading" which shows his impairment was difficulty hearing, which is contemplated by the rating schedule. At the March 2021 examination, the Veteran had an average sensitivity threshold of 24 decibels for the left ear and 18 decibels for the nonservice-connected right ear, with 100 percent speech discrimination for the left ear and 100 percent speech discrimination for the right ear. This is consistent with Level I hearing acuity in the left ear and Level I acuity in the nonservice-connected right ear. Application of Level I acuity for the left ear and Level I acuity for the right ear to Table VII shows that a zero percent rating is warranted. The Veteran did not report any functional impairment from hearing loss. Here, the most severe results during the period on appeal do not show entitlement to a rating in excess of zero percent for left ear hearing loss. Thus, entitlement to an initial compensable rating is denied. 6. From June 24, 2016, a rating of 10 percent, but no higher, for hypertension is granted. Hypertension is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7101. The period on appeal is from June 24, 2016, the date of claim, plus the one-year lookback period. In this regard, the March 2011 rating decision is final, and the July 2015 intent to file relates only to the Veteran's October 2015 formal claim. Under Diagnostic Code 7101, a 10 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more that requires continuous medication for control. Id. A 20 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Id. Higher ratings are available for diastolic pressures predominantly 120 or more. Id. The Veteran submitted a disability benefits questionnaire (DBQ) in June 2016 and presented for an examination as to his hypertension in June 2021. No examination report or other treatment record shows that his diastolic blood pressure has exceeded 100mm during the appeal period. While the evidence does not show a history of blood pressure exceeding 100mm, the Board observes that the Veteran has required continuous medication to control his hypertension for approximately 15 years and there is no evidence as to his current level of impairment in the absence of medication. Moreover, the Board could not develop this evidence without directing the Veteran to cease taking his medication, which it obviously will not do. In light of the Veteran's long history of hypertension requiring continuous medication for control, the current level of impairment more closely approximates the level of impairment associated with a 10 percent rating under Diagnostic Code 7101. See 38 C.F.R. § 4.7. A rating in excess of 10 percent is not warranted as the Veteran's blood pressure has never more closely approximated diastolic pressure of 110mm or more or systolic pressure of 200mm or more. 7. Prior to June 11, 2015, entitlement to a TDIU is denied. Through his former attorney, the Veteran argues that entitlement to a TDIU is warranted because his previous employment was protected. See, e.g., January 2017 VA Form 21-8940; January 2017 Affidavit; February 2018 Affidavit. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Prior to June 11, 2015, the Veteran is in receipt of service connection for TBI with post-traumatic headaches, rated 40 percent disabling; degenerative arthritis of the lumbar spine, rated 10 percent disabling; tinnitus, rated 10 percent disabling; asthma, rated 10 percent disabling; hypertension, rated zero percent disabling; and left ear hearing loss, rated zero percent disabling, for a combined 60 percent disabling evaluation. Thus, prior to June 11, 2015, the Veteran does not meet the schedular criteria for entitlement to a TDIU. In this regard, the evidence does not show that his disabilities are from a single accident, or incurred in action, and he does not otherwise meet the criteria to have his disabilities evaluated together as a single disability rated 60 percent disabling. See 38 C.F.R. § 4.16(a). The Board acknowledges that the Veteran was exposed to multiple TBI blasts in service; however, the evidence shows that his low back disability is not due to trauma. See October 2010 Examination Report. However, notwithstanding that the Veteran does not meet the schedular criteria, entitlement to a TDIU may still be awarded on an extraschedular basis where the evidence shows that a veteran is unable to secure or follow a substantially gainful occupational due to service-connected disability. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Here, the economic criteria are not met over substantial portions of the appeal. In this regard, the Veteran worked at a pest control company from July 2011 to July 2012 and at an oil company from 2012 until November 2016. However, the Board concedes that substantially gainful employment is not shown prior to July 2011. Moreover, the Veteran has argued that his employment during the appeal was "protected" and thus not substantially gainful. The evidence shows that the Veteran is at present able to secure and maintain substantially gainful employment as an owner/operator of a pest control company and receives substantially gainful income from employment. See October 2018 VA Form 21-4140-1. While the evidence shows that he works less than 40 hours per week, this is consistent with receipt of compensation for impairment in earning capacity resulting from service-connected disabilities. As the Veteran is now demonstrably able to secure and maintain substantially gainful employment in the pest control business, and as the evidence does not show that the Veteran's service-connected disabilities have improved, it is most likely that the Veteran's inability to maintain his position in 2011 or 2012 was related to the peculiar circumstances of his employment and this period of unemployment does not demonstrate that he was generally unable to secure and maintain substantially gainful employment. The Board emphasizes that it agrees that the Veteran experienced functional impairment due to service-connected disabilities that interfered with his ability to work in pest control; however, the most probative evidence of record shows that he has been able to overcome this impairment and work on a part-time basis, from which he receives income that satisfies the criteria for substantially gainful employment. With respect to the argument that the Veteran's employment in the oil industry was protected employment, the Board acknowledges that the Veteran was given accommodations. However, even assuming for the sake of argument that the employment was protected and thus satisfied the economic criteria for a TDIU, the evidence does not show that the criteria for referral to the Director of Compensation service are met. Notably, the protected employment provisions of entitlement to a TDIU are only listed in 38 C.F.R. § 4.16(a), pertaining to schedular TDIU, whereas the provisions related to referral to the Director specifically mentions referral for veterans who are "unemployable." Even more important, however, is that given that the Veteran is shown to be able to secure and maintain substantially gainful self-employment in pest control, the most probative evidence of record is that the Veteran was able to secure and maintain substantially gainful employment. Thus, even if the Veteran was not able to secure and maintain substantially gainful employment in the oil industry, he is shown to be able to secure and maintain some form of substantially gainful employment. Accordingly, as the evidence shows that the Veteran has been able to secure and maintain substantially gainful employment, referral to the Director of Compensation Service for extraschedular consideration is not warranted and entitlement to a TDIU prior to June 11, 2015 is denied. Finally, the Board acknowledges that the AOJ has granted entitlement to a TDIU over a portion of the appeal. See April 2017 Rating Decision. This award was based on the Veteran's PTSD alone, and thus is inapplicable to the period prior to June 11, 2015, the effective date of service connection for PTSD. See Delrio v. Wilkie 32 Vet. App. 232 (2019) (effective date of an award of extraschedular TDIU cannot be earlier than the date of service connection for the disability upon which the TDIU award was based). 8. From June 11, 2015, entitlement to SMC at the housebound rate is granted. One of the situations where SMC at the housebound rate is payable is when the Veteran is in receipt of service connection for a single disability rated as total, as well as other separate and distinct disabilities with a combined 60 percent or higher disability rating. Where a Veteran has been awarded a TDIU due to a single disability, this may constitute a single disability rated as total for this purpose. Here, the Veteran is in receipt of a 100 percent schedular rating for PTSD from March 27, 2017. From June 11, 2015 to March 27, 2017, he is in receipt of a 70 percent rating for PTSD and a TDIU based on PTSD alone. See April 2017 Rating Decision (granting TDIU based solely on PTSD). Thus, he is in receipt of a single disability rated as total from June 11, 2015. Moreover, he is separately in receipt of service connection for disabilities rated at a combined 60 percent disabling. Accordingly, SMC at the housebound rate is warranted from June 11, 2015. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.